◼ POLITICS Bloomberg Businessweek August 10, 2020
33Team Neomi,” says Jonathan Adler, a conservative
law professor at Case Western Reserve University
who’s known Rao for more than 20 years. “There’s
beensomejockeying.”
The list remains in flux, with a range of
conservative groups offering suggestions to the
White House, which is also consulting with staff for
Senate Majority Leader Mitch McConnell, according
to people familiar with the process. Some organi-
zations are lobbying for the choices to include con-
servative politicians whose views on social issues
are firmly established, such as Republican Senators
Mike Lee of Utah and Tom Cotton of Arkansas, as
well as Hawley, one of the people said. A White
House spokesman declined to comment.
Rao, who didn’t respond to a request for com-
ment, has long been seen as an up-and-comer in
conservative legal circles. As an undergraduate at
Yale, she wrote caustic opinion pieces challeng-
ing liberal orthodoxy on race and gender issues.
After earning her law degree at the University of
Chicago, she clerked for Justice Clarence Thomas
before joining the law faculty at George Mason
University, where she helped lead the successful
effort to have the law school renamed after the late
Justice Antonin Scalia, an icon of the conservative
legal movement.
She joined the U.S. Court of Appeals for the
District of Columbia Circuit in 2019—taking the
seat occupied by Kavanaugh before he joined the
Supreme Court—after a stint in the White House
heading a regulatory affairs office. She soon drew
scorn from the left with a dissent from a ruling allow-
ing House Democrats to subpoena Trump’s finan-
cial records, in which she said impeachment was the
only context under which Congress can investigate
accusations of illegal conduct by the president. In
June she ordered a lower-court judge to dismiss the
criminal charges against Trump’s former national
security adviser Michael Flynn without investigating
whether the U.S. Justice Department’s decision to
drop the case was a political favor to the president.
Democrats and even some anti-Trump
RepublicanscriticizedherFlynnruling,whichis
beingreviewedbytheappealscourt’sfullpanelof
judges,sayingsheviolated judicial norms to please
the president. “She’s dangerous,” says Christopher
Kang, a founder of Demand Justice, a left-wing judi-
cial advocacy group. “In the positions she takes and
the language she employs, she’s going as far as she
can to prove that she would be a loyal partisan on
the bench.” Her Flynn decision would ensure a blis-
tering confirmation hearing if she were nominated
to the Supreme Court.
Still, Rao has influential backers. John Malcolm,
THEBOTTOMLINE Raois a risingstarin theconservativelegal
movement, but social conservatives such as Senator Josh Hawley
aren’t convinced she’s on their side.a legalexpertattheHeritageFoundationwhose
list of possible Supreme Court justices was largely
adopted by Trump in 2016, says he will almost cer-
tainly include Rao if he compiles a similar one this
summer. “She has the potential, given her rigorous
analysis and clear intelligence, to become a leader
on the court,” he says.
Rao is also friends with Leonard Leo, an archi-
tect of the conservative legal movement who
helped secure the nominations of Gorsuch and
Kavanaugh. In an interview, Leo declined to
comment on the new White House list, but he
defended the movement, pointing to significant
rulings in support of religious groups. “Anyone
who says that the judicial selection process is a
failed conservative enterprise either doesn’t know
the facts or is a snake oil merchant,” he says.
That may not be enough for social conserva-
tives who are pushing Trump to impose litmus tests
on court nominees. Although he ultimately voted
to confirm her to the D.C. Circuit, Hawley raised
questions about Rao’s commitment to overturn-
ingRoev.Wade, pointingtopastwritingsinwhich
shehadusedthephrase“anti-abortion”ratherthan
“pro-life,” the term preferred by anti-abortion activ-
ists. Hawley recently announced he would vote to
confirm Supreme Court justices only if they agree
that Roe v. Wade was wrongly decided.
Adam White, a professor at George Mason’s law
school, where Rao used to teach, says he expects
her to remain a force in conservative legal circles.
But he acknowledges that the frustration of religious
conservatives might continue to hurt her and other
judges with slim or mixed track records on social
issues. “The questions Hawley raised will surely be
raised again,” he says. �David Yaffe-BellanyDATA: PEW RESEARCHConfirmed Federal Judges
JudgesapprovedbytheSenateasofJuly7 of each president’s fourth year in office
◼Appealscourtjudges ◼ Other judgesGeorgeH.W.BushBillClintonGeorgeW.BushBarackObamaDonaldTrump3630353053197160184152194