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In Which Brett Kavanaugh’s Replacement is Somehow More Evil Than Brett Kavanaugh


I am pretty good about not underestimating the evil of Republicans. But sometimes, maybe on Friday night while on my 2nd beer, I am completely blown away. Or maybe the beer has nothing to do with it and I am simply not a moral monster like Trump’s nominee to replace Brett Kavanaugh on the DC Circuit:

President Donald Trump’s judicial nominees have had some unusual hobbies and pet causes. Alabama District Court nominee Brett Talley is an amateur ghost-hunter and horror novelist. (The White House withdrew his nomination after it was revealed that he’d blogged favorably about the Ku Klux Klan.) Don Willett, confirmed to the 5th Circuit Court of Appeals, opposes same-sex marriage but once tweeted that he “could support recognizing a constitutional right to marry bacon.” Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.

Especially popular in Florida bars, dwarf-tossing is the strange spectacle in which competitors throw Velcro-clad little people at a wall or mattress like a shotput. The longest toss wins. The sport has been banned in some American states and parts of France, where a judge upheld such bans because of “considerations of human dignity.” Rao considers these laws an affront to individual liberty that fails to recognize the right of the dwarf to be tossed. In one article, she wrote that the decision in France upholding the dwarf-tossing ban was an example of “dignity as coercion” and that it “demonstrates how concepts of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity.”

Dwarf-tossing is an odd cause for a federal judicial nominee to champion. Even weirder, Rao has invoked it repeatedly in her writing to make the case that a misguided focus on human dignity is leading US courts to run afoul of the Constitution in decisions that advance LGBT rights and racial equality. These are areas of the law where, she argues, judges are letting the pernicious influence of international human rights law creep into their jurisprudence at the expense of American exceptionalism and personal freedom.

Her scholarly work hits on all the conservative bugaboos obsessed over by lawyers in the Federalist Society, the influential legal group that has played a major role in the Trump administration’s judicial nominations, including hers. It also gives a pretty good indication of where she will come down as a judge, not just on dwarf-tossing bans, but on some of the nation’s most contentious issues.

Dwarf-tossing. Wow. Is the goal of the modern Republican Party to recreate the series Deadwood in the 21st century? Except that Al Swearingen is actually less evil than Donald Trump. I just….I don’t know. What do you even say about this? Of course, her background is exactly what you would expect:

Born to Parsi doctors who immigrated from India in the 1970s, Rao grew up in the Detroit metro area and attended Yale University. She interned at the conservative Heritage Foundation, which has helped the Trump administration pick federal judges. She worked as a reporter for the conservative Weekly Standard before heading off to the University of Chicago law school. From there, she took the well-trod path of many conservative rising stars, clerking first for 4th Circuit Judge Harvie Wilkinson and then for Thomas. After a stint on Capitol Hill as counsel to Republicans on the Senate Judiciary Committee, she landed an associate position in the White House counsel’s office during the administration of President George W. Bush. At the time, Kavanaugh was also working in the administration, as White House staff secretary. A year later, he left to take the seat on the DC Circuit that Rao has been nominated to fill.

For the past decade, Rao has been on the faculty of GMU’s law school, a bastion of conservative legal scholars. She was not well known outside conservative circles before joining the Trump administration. Her specialty, administrative law, isn’t a particularly media-friendly topic. But her obscurity might also be a related to the impenetrability of her scholarship, including her hot takes on dwarf-tossing. “She takes these sort of nutty positions on whether we should recognize human dignity” and whether it falls within the jurisdiction of the court, says Goodwin, who read all of her work while writing his report.

Turgid to the point of incomprehensibility, Rao’s writing reflects little of her idol Scalia’s literary genius, but it does hint at some of his homophobia. The work suggests that Rao’s conservatism goes far beyond regulation and extends to some of the nation’s most contentious social issues, including affirmative action, the welfare state, and international humanitarian aid. It’s particularly focused on LGBT rights, with special scorn reserved for Supreme Court decisions written by Justice Anthony Kennedy, whose retirement this summer elevated Kavanaugh and made Rao’s nomination possible.

I see Trump has a replacement ready if Ginsburg dies.

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