I’m guessing no, but the fact that there are at least two Republican senators concerned with her views on the subject is noteworthy. Rao’s just 45 years old and is headed to the D.C. Circuit if confirmed, the appellate court that traditionally provides more SCOTUS justices (like Brett Kavanaugh) than any other. Being young, a woman, and a minority, she’s a potential shortlister for a vacancy on the High Court after a few years on the bench if Trump wins a second term. She’d better hope she gets an abortion case in that period which she can use to prove her pro-life bona fides, though; otherwise, with doubts like these circulating, it’s unimaginable that conservatives would be willing to gamble on a promotion.
[Josh] Hawley said he’d read Rao’s academic work and was concerned that some of her writings suggested to him that she might be comfortable with “substantive due process” — a legal interpretation, loathed by many conservatives, that can be used to protect rights, such as the right to an abortion, that aren’t mentioned in the Constitution…
After Axios published the Sneak Peek newsletter on Sunday, another Republican senator reached out to say they had concerns about Rao’s judicial philosophy and views on abortion.
Hawley added: “I have heard directly from at least one individual who said Rao personally told them she was pro-choice. I don’t know whether that’s accurate, but this is why we are doing our due diligence.”
One of Rao’s allies “disagreed vehemently with Hawley’s interpretation of Rao’s academic work,” per Axios, and Powerline got tipped to a few lines from that work that suggest skepticism of substantive due process. In one piece Rao noted that SDP “arguably has no textual support in the Fourteenth Amendment Due Process Clause, and was at any rate severely discredited after the Lochner era,” which is true — although that’s little more than a description of reality, not an insight into how Rao herself thinks. (It’s true that substantive due process *was* discredited after Lochner. Then the Warren Court re-credited it in the context of sexual matters.) This quote is more promising: “In Casey, the plurality focused on the inherent dignity of a woman’s freedom to choose an abortion, but minimized the competing inherent dignity of the fetus to life.” Proof that she’d overturn Roe? Nah. But as Ed Whelan says, you rarely get that degree of clarity from a potential judicial nominee, for obvious reasons. An ambitious young legal academic has good reason for future confirmation purposes in keeping his or her views opaque.
It’s strange to me that someone with Rao’s credentials isn’t being given the benefit of the doubt about an ambiguity in her record, too. She clerked for Clarence Thomas and, before that, another famously right-wing appellate judge in J. Harvie Wilkinson. She worked for George W. Bush and Orrin Hatch. She’s known professionally as an advocate of deregulation. If her name rings a bell, it might be because she was confronted at her confirmation hearing by Cory Booker for possibly believing that gay relationships are sinful and then challenged by Republican Joni Ernst for things she’d written in college about who bears blame in date-rape cases. The knock on her to this point, in other words, is not that she’s suspiciously left-wing. Even stranger, the Axios piece quoting Hawley on his concerns about her offers not a single example from her scholarship of why he thinks she might support substantive due process and abortion. Where’s this sudden “stop Rao” push really coming from?
Is it the hearsay mentioned in the excerpt, that Rao allegedly told someone that she’s pro-choice? Maybe Hawley has that on good authority and, knowing that he can’t prove it, is trying to ground his concerns in her legal writing instead. You would think he’d have found a passage worth quoting by now. If he decides to vote no, I’ll be curious to see how much political capital Trump exerts on her behalf to get her through the Senate. Potentially Hawley, Ernst, and the unnamed senator in the excerpt will all oppose her, leaving McConnell with no margin for error on the confirmation vote unless Manchin crosses the aisle. But she’s no ordinary nominee: She led his deregulation effort at the Office of Information and Regulatory Affairs and he proudly announced her nomination at a White House ceremony celebrating the Hindu holiday of Diwali. He’s not going to shrug and let her go down, I think. I bet he ends up getting her through without Pence needing to cast a tiebreaker.
Next time she comments on this, she should say that she doesn’t believe in substantive due process because, like Clarence Thomas and Neil Gorsuch, she’s a fan of the Privileges or Immunities Clause instead. Let Hawley try to read the tea leaves on that one.