Any nominee chosen by President Trump to replace the D.C. Circuit Court seat vacated by Supreme Court Justice Brett Kavanaugh was bound to come under fire. But, as both a Republican firebrand and a woman of color, Neomi Rao has found herself in the midst of a nasty confirmation hearing rehashing a key remnant of the anti-Kavanaugh crusade: sexual assault.
All discussion of Rao’s past should be preceded with the fact that the American Bar Association, no friend to conservative jurisprudence, issued their top “well qualified” rating to Rao. Like Supreme Court Justice Elena Kagan, Rao has never been a judge before. And also like Kagan, Rao has ample legal experience as a Supreme Court clerk, law school professor, White House counsel, and top official in an executive branch office or department; Kagan served as solicitor general of the United States, and Rao currently runs the Office of Information and Regulatory Affairs.
That being said, Rao’s college writings have put her in hot water. As an undergraduate at Yale University, Rao wrote a number of opinion pieces that fit a fairly hackneyed and predictable college columnist genre: inflammatory and contrarian conservative. While most writings scrutinized by the Left are fairly innocuous, a few comments about feminism and sexual assault are far less palatable.
In a piece lamenting the “hysteria over date rape,” Rao wrote:
These sentiments on consent would be disqualifying if Rao held them today. But, as Rao told the Senate Judiciary Committee today, she doesn’t.
“To be honest, looking back at some of those writings and rereading them, I cringe at some of the language that I used,” Rao said to the senators. “I think I was responding to things that were happening on campus at that time and in the intervening two decades, I like to think that I have matured as a thinker and a writer, and indeed as a person.”
Responding to Sen. Joni Ernst, R-Iowa, Rao denounced her former writings, making clear she understands and supports the law as it is: that the only person to bear legal and moral blame in a rape is the perpetrator, regardless of circumstances. After all, it would be hard to believe that someone could make it through three years of law school and two decades of a prominent legal career without understanding a very basic and widely accepted standard that incapacitation impedes ability to consent.
Democrats will continue to hold up Rao’s writings as evidence she’s a nefarious rape apologist rather than a former college provocateur who now understands, and emphatically accepts, the legal definition of consent. Rao could slip up later in an attempt to defend her then-erroneous logic about rape and legal culpability. But, as it stands, she answered and apologized for a misguided sentiment written almost a quarter of a century ago. That should be good enough.
