November 2 - President Trump Appoints Neomi Rao to Fill Ginsberg Supreme Court Vacancy

November 2, 2020

Summary: In a move which is shocking but not surprising, President Trump appointed D.C. Court of Appeals Judge Neomi Rao to the Supreme Court to fill Justice Ruth Bader Ginsberg’s position after her death October 31.  Senate Majority Leader Mitch McConnel’s move to adjourn the Senate upon hearing of Justice Ginsberg’s hospitalization enabled Trump to appoint Rao directly to the Supreme Court until the Senate is called back into session, which could mean she will likely rule on suits brought disputing the results of the November 3 election.  A former member of the Trump Administration, Rao ruled in her former boss’ favor in two controversial cases: serving as the lone dissent in a 2-1 ruling allowing congressional subpoenas of the President’s tax records, and writing the majority opinion ordering a lower court Judge to dismiss a case against former National Security Advisor Michael Flynn.  The move is likely to energize conservative voter turnout, which until now was perceived to be lagging.  End Summary

Senate Majority Leader Mitch McConnell laughed but did not answer questions from reporters when confronted about his decision to adjourn the Senate, allowing President Trump to appoint U.S. Circuit Court of Appeals Judge  Neomi Rao directly to the Supreme Court- his first recess appointment of any Judge.  The Majority Leader’s office later released a statement which said, “given the historical significance of the upcoming election, it is critical America is served by a full panel of qualified judges dedicated to the principles of our founding fathers.  Rao’s qualifications to uphold these principles are without reasonable dispute.”

From the perspective of conservative “originalist”  legal scholars, Neomi Rao fits the mold of a Supreme Court nominee perfectly.  She is well qualified academically, after receiving her B.A. from Yale University and her J.D. from the University of Chicago, she taught constitutional law at George Mason University, where she was instrumental in naming the law school for Antonin Scalia.   She clerked for Supreme Court Justice Clarence Thomas, served as counsel to the Senate Judiciary Committee, and as Special Assistant to President George W. Bush.

Before being appointed to fill Brett Kavanaugh’s vacancy on the U.S. Circuit Court of Appeals in November 2018, Rao served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget, where she won praise from industry groups for dramatically cutting regulations. 

As a judge, Rao made two controversial rulings which well respected judicial commentator Lynn Dupree commented “seem in retrospect, as if she was auditioning for this job.”   Rao was the dissenter in a 2-1 ruling affirming a district court ruling supporting a congressional subpoena for President Trump's records from his accounting firm, Mazars. Her opinion stated, "allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment."  The Supreme Court later remanded this case back to the Circuit Court with a decision that specifically ruled against this finding.

On June 24, Rao wrote the majority decision in a 2-1 ruling ordering Judge Emmett Sullivan to rule in favor of the Department of Justice’s motion to  moving to dismiss charges against former National Security Advisor Michael Flynn.  The decision was later reversed by a full “en banc” panel of the entire U.S. Circuit Court of Appeals, and is pending with the Supreme Court which she will now join.

The child of first generation Indian immigrants, Rao’s appointment was praised by Indian-Americans, a small but growing demographic sometimes seen as more conservative than other immigrant groups, despite concerns about the Trump Administration’s decision to suspend H1B and L visas due to COVID-19 concerns.  The move could boost Indian-American voter turnout in Texas, where 50,000 Indian-American attended a September 2019 “Howdy, Modi!” event for Indian Prime Minister Narendra Modi.

Comment: Rao’s appointment signals desperation on the part of the Republican Party, and acknowledges conservative fears that Chief Justice John Roberts, preoccupied with the political legitimacy of the Court, might not side with them in a controversial decision.  If Trump wins the presidential election as the result of a Rao decision, Democrats would likely dedicate themselves to ensuring she does not receive a permanent appointment when the Senate reconvenes.  However, a second Trump term would virtually guarantee a conservative majority for several decades, regardless of who holds the seat.   End Comment