Senate Judiciary Committee member expresses concern over Rao’s position on substantive due process

Senate Judiciary Committee member Josh Hawley (R-Mo.) expressed concern on Sunday about confirming Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit due to Hawley’s reading of Rao’s academic writings that he claims favor substantive due process.
Hawley stated in a February 24 interview with Axios that Rao’s writings suggest her support for substantive due process—a legal interpretation that aims to safeguard general rights not specifically named in the U.S. Constitution. Hawley and other lawmakers who oppose abortion criticize substantive due process because it has been applied to advance abortion cases, including Roe v. Wade, through federal courts.
“I get worried anytime I see a candidate for the bench who takes a warm view for substantive due process because to me that’s just code for making stuff up from the Constitution,” said Hawley in a February 25 radio interview with Marc Cox.
Conservative groups, including Americans for Prosperity, the Judicial Crisis Network, and the Faith and Freedom Coalition, restated their support for Rao. “Instead of supporting President Trump’s top judicial nominee, [Hawley] is spreading the very same kind of rumors and innuendo and character assassination that Republican leaders fought during Justice Kavanaugh’s confirmation,” said Carrie Severino, chief counsel for the Judicial Crisis Network, in a statement.
President Trump nominated Rao to the DC Circuit seat, which was vacated by Brett Kavanaugh following his confirmation to the United States Supreme Court, on November 13, 2018. Prior to joining the Trump administration as the administrator of OIRA in July 2017, Rao worked as an associate professor of law at George Mason University’s Antonin Scalia Law School, where she founded the Center for the Study of the Administrative State. She also served as counsel to the United States Senate Committee on the Judiciary under U.S. Senator Orrin Hatch (R), as a law clerk for Supreme Court Justice Clarence Thomas, and as a special assistant and associate counsel to former President George W. Bush (R).