At D.C. Circuit nominee Neomi Rao’s hearing before the Judiciary Committee, her work as administrator of the White House’s Office of Information and Regulatory Affairs (OIRA) played a central role. She did not assuage concerns that her personal opposition to health and safety protections would find expression through her judicial opinions.
For instance, she dodged a key environmental question. In response to Sen. Patrick Leahy, she acknowledged the overwhelming scientific consensus that the planet is experiencing significant climate change. But when the senator then asked if it is being caused by human activity, she gave the industry-approved response that such activity only “contributes” to climate change. To cap it off, she added, “I’m not a scientist, Sen. Leahy.”
Of course, not being a scientist didn’t stop her from noting that all scientific data make clear that the Earth is warming just a couple of minutes earlier.
As administrator of OIRA, Rao is supposed to make sure that federal agencies base their policies on accurate science rather than conjecture or outright disinformation. As we noted in our letter opposing her, she had vital and uncontroversial information about climate change removed from EPA’s analyses of the costs and benefits of rolling back various environmental protections.
That willingness to ignore facts when they get in the way of ideology goes back to her 20s, when she dismissed the greenhouse effect, the depleting ozone layer, and acid rain as the “three major environmental bogeymen,” and when she criticized environmentalists for “accept[ing] issues such as global warming as truth with no reference to the prevailing scientific doubts.” And it is just as incompatible with running OIRA with integrity as it is with analyzing complex cases as a judge.
Similarly, the writings on sexual assault that she called “cringe-worthy” at her hearing nevertheless still resonate in the rollback of Title IX protections for survivors that OIRA is managing.
At one point, she tried to distance herself from the policies she oversees in the Trump administration, noting that proposals come from the agencies and not OIRA. But she undercut her own case when she was telling Sen. Leahy why she thinks her experience qualifies her for the D.C. Circuit:
As the administrator of OIRA, I oversee administrative policy on a wide swath of issues from all of the executive branch agencies.
Of course, OIRA is involved with the substance of the agency health and safety protections it oversees. She stated as much at her 2017 confirmation hearing for her current position:
OIRA plays a vital role within the executive branch to ensure that administrative agencies follow the law, base their decisions on the best possible economic and technical analysis, and fulfill presidential priority.
Given Rao’s major role overseeing administrative actions under the Trump administration, one might think that—if confirmed—she would agree to recuse herself from cases on measures she had worked on. But one would be wrong. She declined to make this commitment to Sen. Feinstein.
When Sen. Feinstein had an opportunity to ask follow-up questions, she pointed out that D.C. Circuit nominee Greg Katsas, a high-level White House staffer, laid out matters he had worked on in that capacity and agreed to recuse himself from cases arising from those matters. In fact, that’s standard for nominees. But even given this additional opportunity, Rao refused to take it.
Senators should not allow Neomi Rao to take the ideology she wields at OIRA as a weapon against health and safety protections and use it from a lifetime position on the federal courts.