Cloture Motion
Floor Speech
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Mr. BLUMENTHAL. Madam President, there are many reasons to care about our Federal judiciary. It touches all of us in our everyday lives even though we often fail to appreciate its enormous impact. No court of appeals in the United States is more important than the DC Circuit, and so few of the nominees whom we will consider in this body will be more important than Neomi Rao to the U.S. Court of Appeals for the DC Circuit.
It has a unique jurisdiction that makes it the court to most frequently hear challenges to the Federal Government's public protections. It considers issues of national consequence, ranging from workers' rights, nondiscrimination policies, consumer protections, immigration policies, money in politics, reproductive rights, access to healthcare, environmental justice, antitrust cases, and regulatory action, like the possible grounding of an unsafe airplane by the FAA.
I have called on the FAA to ground the 737 MAX 8 and MAX 9. I have asked the airlines to do it voluntarily. If the FAA does the right thing, as it should, and orders these planes grounded, its decision may be challenged in the U.S. Court of Appeals for the DC Circuit, and the safety of our skies and our airline passengers will hang in the balance. This is just one example of how the DC Circuit can matter not only to the lives of people within a particular geographic area but to, literally, the entire United States.
When I ask nominees questions that are designed to elicit their views, their opinions, their past positions, and their present policies, I expect direct, candid answers, but I received just the opposite from Neomi Rao on some of the critical, bedrock issues that are important to all of us in this Chamber when judging a nominee.
I asked Neomi Rao whether she thought Brown v. Board of Education--a pillar of our jurisprudence--was correctly decided. She declined to answer. She said she felt it was inappropriate for a nominee to the court to be giving views on specific cases. I asked her for her views and her position on that case. She declined to give them. She also declined to give them on Roe v. Wade and on Griswold v. Connecticut.
One of my Republican colleagues on the Judiciary Committee also has reservations about Neomi Rao's opinions in some of these cases. He fears that Ms. Rao actually supports a woman's right to choose and supports the legal doctrine of substantive due process. Unlike me, he met Ms. Rao in private, and he got straightforward answers about her views on those cases and on the underlying legal theories. She passed his test, the President's litmus test, and the test of those outside groups--extreme rightwing, conservative groups--that have been given authority as a result of the President's outsourcing of these decisions to, in effect, decide on the nominees to our highest Court.
She passed the test established by the President--that he would appoint judges who would overturn Roe v. Wade.
But as abhorrent and objectionable as I find many of her views and her failure to give straightforward answers, she has also written a number of very troubling articles and op-eds about her views on women's rights and women's healthcare. We have in this Chamber a term called "confirmation conversion,'' and I thought Ms. Rao would completely disavow and abandon those pieces.
In an op-ed about date rape, she wrote: ``If [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice.'' In another op-ed criticizing aspects of feminism, Rao wrote that women "must be thoroughly educated about the consequences of their sexuality in order to prevent such problems'' as date rape. From early in her career, these writings indicate that she believes women bear a major part of responsibility for date rape.
These writings are from early in her career, and I thought she would completely break with them and reject them, but she failed to do so. Only after the hearing did she disavow them, without directly apologizing, and that kind of confirmation conversion is inherently unbelievable.
Undermining her credibility even more are the actions she took later in her career--after those writings and before she was nominated.
She serves as the head of the Office of Information and Regulatory Affairs, also known as OIRA. Her job is to review all regulatory actions--all of them--proposed by the administration. In that capacity, Ms. Rao approved rescinding guidance provided to schools on how to address and prevent campus sexual assault. Under the new rules, sexual assault survivors would be required to undergo live cross-examination by their attacker's representative. In the course of an administrative proceeding, there would be cross-examination by the attacker's lawyer or other representative. Schools would be required to use a higher standard of proof for claims of sexual misconduct.
Under this administration's own analysis, these rules would have a profound, chilling effect on the number of campus sexual assault investigations that are conducted. That is the reason they are proposing the new rules--to discourage survivors from coming forward to seek justice.
It is not only Rao's early writings that stigmatize and blame women survivors of sexual assault; the recent policies she approved and authorized institutionalize these really regrettable and unacceptable views. Her deeply troubling positions on sexual assault and her victim- blaming rhetoric--which she tried to excuse initially as the reckless musings of a college student rather than breaking with them and rejecting them--place the rights of women and others at risk. We should deny her confirmation.
Equally important, she has also used that position at OIRA to restrict reproductive rights.
Let's be clear. One of the important features of the Affordable Care Act is a requirement that health insurers cover contraceptives as an essential health benefit--no charge to consumers because it is an essential health benefit.
Last year, the Trump administration issued rules that would allow any and all private companies to deny contraception coverage if the CEO had a moral or religious objection. Two Federal courts found that the rules were illegal because they violate the due process clause--the legal process required by law to implement the new rules--and that objection was found to be an inadequate justification for, in effect, violating the rights of women who would seek that kind of care at no charge. As the head of OIRA, Neomi Rao not only approved of the substance of the new rules but was so committed to implementing them that she signed off on an illegal process to do so.
That is not all Neomi Rao has done to, in effect, discourage and deter reproductive health. The Department of Health and Human Services recently finalized a new title X regulation. Under this rule, ``Any organization that provides or refers patients for abortions is ineligible for title X funding to cover STD prevention, cancer screenings, and contraception.'' As with any rule, OIRA had to conduct a cost-benefit analysis in order to approve that rule, and I am deeply troubled by Rao's views and actions on reproductive rights that led her to approve that rule and encouraged and condoned the rule and its disastrous effects on women's rights and healthcare.
We are living in an era fraught with abuses of power, under a President who has shown nothing but disdain for the rule of law. In this dark and dangerous era, it is all the more important that we have someone willing to set limits on executive power to prevent an imperial Presidency.
In fact, Ms. Rao is a proponent of a fringe theory on executive power known as the unitary executive theory. She believes that the President, as the head of the executive branch, holds absolute control over executive power.
As recently as 2014, she outlined the implications of this theory in the Alabama Law Review. According to her, the President must be able to remove at his sole discretion all principal officers, including the heads of independent Agencies.
She has criticized the Supreme Court's decision in Morrison v. Olson, which upheld the independent counsel statute in effect at that time. In her view, the President must be able to fire at will anyone in the executive branch. In her view, that includes special prosecutors tasked with investigating wrongdoing by the President.
In 2016, she was interviewed on Hugh Hewitt's radio show. She was asked whether she believes the current special counsel regulations have similarly restrictive effect on executive power and whether the President can direct the actions of the Attorney General or Acting Attorney General. Her view? The Constitution vests all executive power in the President. He can direct his subordinates. He can fire the special counsel.
I hoped that during her confirmation proceedings, she would disavow those views. I asked her whether she thought the President could fire Robert Mueller, the current special counsel. She refused to answer my question.
That extreme view of Presidential power is deeply alarming when it is held by a member of one of the most important courts in the country, which may review decisions of that special counsel to subpoena the President or potentially indict the President or take other actions in the course of an investigation.
I am more than alarmed; I am strongly opposed to this nomination. I hope my colleagues will join me in voting no on final confirmation.
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