Commentary Law and Policy

Getting ‘Kavanaughed’ Isn’t a Thing; Neomi Rao Just Isn’t Fit for the Federal Judiciary

Shiwali Patel

Rao appears to be merely another accomplice in this administration’s attack on survivors of sexual assault.

It’s ironic that just a few months after the country heard from Christine Blasey Ford and grappled with U.S. Supreme Court Justice Brett Kavanaugh’s sexual assault allegations, a rape apologist—picked by President Trump—could potentially fill Kavanaugh’s old seat on the D.C. Circuit Court of Appeals.

This morning was Neomi Rao’s confirmation hearing, which I attended with a few colleagues and friends who, along with me, signed a letter from 65 South Asian women lawyers, law professors, and survivor advocates to the Senate Judiciary Committee to express our strong concerns about Rao. Although nominating a South Asian woman to a federal court could have been a righteous move by Trump to address the lack of diversity on federal courts, Rao appears to be merely another accomplice in this administration’s attack on survivors of sexual assault.

Rao’s decades-long behavior of blaming survivors is not merely a series of philosophical musings, or a blip on the radar. Her actions, in fact, reflect a deep-seated belief formed around dangerous rhetoric that perpetuates myths about rape. And it’s this type of rhetoric that makes our country’s institutions toxic, deterring survivors of sexual violence from reporting and getting the help and support that they need.

In an article that she wrote for the Yale Herald in 1994, Rao questioned whether some women who reported that they were sexually assaulted while intoxicated were really just making false accusations stemming from regret. In that same article, Rao said that “a good way to avoid a potential date rape is to stay reasonably sober.” In another piece published at the Yale Free Press in 1993, Rao suggested that women need to “understand and accept responsibility for their sexuality” in order to prevent the problems of date rape. She claimed that the term “date rape” “removes the burden of sexual ambiguity from the woman’s shoulders.” And she criticized feminists for claiming that “women should be free to wear short skirts or bright lipstick,” because, according to Rao,“[m]isunderstandings occur from subtle glances, ambiguous words.”

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Some might say that these writings are in the past, and she appeared to want to distance herself from them on Tuesday. But her willingness to discount the experiences of survivors in the 1990s are linked to her decisions in her recent role as the head of the Trump administration’s deregulatory agency, the Office of Information and Regulatory Affairs (OIRA). As administrator of OIRA, Rao’s fingerprints can be found all over the administration’s aggressive and harmful regulatory actions, including the Department of Education’s much-discussed proposed changes to the Title IX rules that would allow, and in many cases require, schools to dismiss reports of sexual assault and would create processes unfair to survivors.

When OIRA was reviewing the proposed rules last fall, tens of advocacy organizations, including my organization, the National Women’s Law Center, met with them to bring our concerns to its attention. Those concerns included that the draft rules failed to take into account the costs of sexual violence on survivors. Despite being responsible for examining the cost-benefit and burdens imposed by the draft rules, OIRA failed to address these serious flaws, which existed in the latest version of the proposed rules. And recently, a number of educational institutions raised concerns about the additional burdens and costs the rules would place on them in having to develop unnecessary and harmful processes. Given Rao’s history, it’s clear in her actions—or lack thereof—as administrator of OIRA, she simply didn’t care.

At the hearing, when Rao was asked about her comments about sexual assault survivors, she didn’t fully walk back on her rape-apologist rhetoric. Rather, when she was asked about her statements from college, Rao responded that she was simply trying to make a “common sense observation” on “actions women can take to be less likely to become victims.”

Diversity on the bench matters. As a South Asian American woman and civil rights attorney, I fully understand and appreciate the significance of the first South Asian woman to serve on a federal appellate court, but tokenizing people of color is not true diversity. And most importantly, treating this vacancy as an opportunity to check biographical boxes is not indicative of the humanity we need in the judiciary, particularly in light of serious concerns about Rao’s ability to be fair and independent as a judge.

While some claim that Rao is getting “Kavanaughed,” which to them means being smeared by the left, what getting “Kavanaughed” should mean is being held accountable for past actions and statements—as they should be when interviewing for a lifetime position that would allow them to wield power over thousands of lives.

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