Another View: Partisanship could get even worse


Already poisoned by partisanship, the judicial nomination process got an overdose of toxicity when Senate Majority Leader Mitch McConnell, R-Ky., refused to consider any Supreme Court nominee from President Barack Obama in 2016, thus shutting out the eminently moderate and qualified Judge Merrick Garland. Democrats continue justifiably to seethe over that, one of many reasons that President Donald Trump's nominees have been approved along party lines so often.

Bad as this level of partisanship is, it could get worse. There has just been an intra-Republican struggle in the Senate Judiciary Committee over the nomination of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit. Conservative Sen. Josh Hawley, R-Mo., balked at voting to send Rao's name to the floor over her suspected sympathy for a woman's right to choose. The indicia of her possible apostasy on this point included her having written, accurately, of a 1992 Supreme Court decision upholding Roe v. Wade, that it "treated a woman's right to choose an abortion as part of her constitutionally protected liberty, because her choice implicated both dignity and autonomy." Thus was a solidly conservative Republican nominee nearly sidetracked until McConnell gave Hawley a talking-to and the Missourian joined 11 other GOP committee members in voting yes.

Though the stuff of GOP ideological purity tests, the issue of Rao's nomination is, for us, relatively straightforward. Presidents are entitled to deference in staffing the judiciary as long as they pick well-qualified people within the broad mainstream of judicial thought. That has been our long-standing view and it has been the basis of our support for nominees of presidents from both parties, with rare exceptions, such as Brett Kavanaugh, whose demonstrated lack of judicial temperament at his confirmation hearings overrode his strong resume.

Rao would not have been our choice, given her support for Trump's deregulation agenda as chief of a key White House office. Yet, as a former Supreme Court law clerk, George W. Bush White House aide and law professor — rated "well-qualified" by the American Bar Association — the 45-year-old Rao is fit to serve. In that sense, we disagree with Democrats who opposed her, not only because of her legal views but also because she wrote a student newspaper article on date rape at Yale University suggesting that if a woman "drinks to the point where she can no longer choose, well, getting to that point was part of her choice." (A Republican, Sen. Joni Ernst of Iowa, raised this point, too, before voting for Rao in committee.) As insensitive as the piece may be, Rao has apologized for it, apparently sincerely. Without more evidence of biased thinking on sexual assault, it's not a reason to reject her.

Actually, we hope Hawley's suspicions about Rao's willingness to follow Supreme Court precedent on abortion are correct. A lower-court nominee's acceptance of precedent, legal ability and personal integrity are the criteria to which the Senate must sooner or later return lest the courts, and the rule of law itself, lose legitimacy.

— The Washington Post



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