WASHINGTON -- Sen. Tom Cotton, R-Ark., is privately raising questions about Neomi Rao, President Donald Trump's nominee for the U.S. Court of Appeals for the District of Columbia Circuit, and about how she would potentially rule on cases involving abortion, according to people familiar with the matter.
Though he hasn't voiced them publicly, Cotton shares concerns outlined by Sen. Josh Hawley, R-Mo., earlier this week about Rao's judicial philosophy; Hawley detailed them in a letter to Rao on Tuesday.
On Wednesday, Cotton declined to comment about Rao's nomination, Cotton spokesman James Arnold said.
The concerns from two Republican senators with substantial legal credentials -- Hawley is a former Supreme Court clerk, while Cotton graduated from Harvard Law School -- represent another stumbling block for Rao, who was nominated in November to replace now-Justice Brett Kavanaugh on the influential D.C. Circuit Court.
In the letter to Rao on Tuesday, Hawley said he still has questions about her judicial philosophy.
"Understanding that lower court judges are bound by precedent, I will not vote to confirm nominees whom I believe will expand substantive due process precedents like Roe v. Wade and Casey v. Planned Parenthood of Southeast Pennsylvania," Hawley wrote to Rao, citing two landmark Supreme Court decisions recognizing a constitutional right to abortion.
Hawley, a member of the Senate Judiciary Committee, was scheduled to meet one on one with Rao on Wednesday -- one day before the committee plans a vote on her nomination. Republicans hold two more seats than Democrats on the committee, and the GOP controls a 53-47 majority in the full chamber.
Yet Hawley's objections to Rao, first reported by Axios on Sunday, have infuriated much of the Republican establishment that has had significant victories during the Trump presidency in getting more conservatives confirmed to the courts.
In a meeting Monday, Senate Majority Leader Mitch McConnell, R-Ky., upbraided Hawley, a freshman senator, over the Rao nomination, according to two people familiar with it who declined to be identified talking about a private matter.
During the meeting, a displeased McConnell told the Missouri senator that there were two sides in the Rao nomination battle -- Republicans and allied groups, and Democrats. McConnell then pressed Hawley: Which side do you want to be on?
A Hawley spokesman did not immediately respond to a request for comment on the meeting with McConnell, who has made confirming judges a top priority for the GOP-controlled Senate.
Some Republicans were upset with Hawley over how the senator injected questions about Rao's personal views of a judge into a discussion about whether she should be confirmed. Hawley told Axios that he has heard from at least one person "who said Rao personally told them she was pro-choice," although Hawley acknowledged in the interview that he was not sure whether that was true.
Jonathan Adler, a law professor at Case Western Reserve University who supports Rao's nomination, called concerns from conservatives "extremely odd." Rao, he said, just withstood a "barrage of unfounded attacks" from liberal groups and "suddenly has to turn around and face innuendo and hearsay from the right."
Adler said he does not know Rao's personal views when it comes to abortion, but he emphasized that in general Rao understands that as a judge, personal preferences and what the law requires might not always line up.
"She is an originalist and a constitutionalist," said Adler, who has known and worked with Rao for two decades. "She has exactly the type of judicial philosophy Hawley says he wants."
The caseload on the D.C. Circuit is heavy on disputes involving federal agencies and executive power. Cases involving abortion are rare there.
The push-back from allied groups on Hawley has been swift and severe. The Judicial Crisis Network, a deep-pocketed advocacy group that promotes conservative candidates to the bench, plans to begin a $500,000 paid media campaign on television, radio and online next week pressuring Hawley on Rao, who clerked for Justice Clarence Thomas and serves as the administration's regulatory czar.
"Sadly, barely a month after moving to Washington, Josh Hawley is already acting like Claire McCaskill when it comes to judges," said Carrie Severino, the group's chief counsel and policy director, likening Hawley to the Democratic senator he ousted last year.
"Instead of supporting President Trump's top judicial nominee, he is spreading the very same kind of rumors and innuendo and character assassination that Republican leaders fought during Justice Kavanaugh's confirmation."
Severino said the group would monitor whether it should increase the ad buy.
Information for this article was contributed by Ann Marimow of The Washington Post.
A Section on 02/28/2019