Brett Kavanaugh (AP/Saul Loeb)

Someone who made troubling claims about date rape could fill Kavanaugh’s former appellate court seat

Neomi Rao is also rumored to be a contender for a spot on the Supreme Court, should one open up


Cody Fenwick
January 14, 2019 11:20PM (UTC)
This article originally appeared on AlterNet.
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Scars from the battles over Supreme Court Justice Brett Kavanaugh’s vicious confirmation process are still fresh, and the White House has decided to exacerbate the injury.

BuzzFeed News reported Monday that the person named to fill Kavanaugh’s vacated seat on the D.C. District Court, typically viewed as the second-most powerful court in the country and often a source of Supreme Court nominees, has a troubling history of published opinions, particularly on the nature of “date rape.”

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Neomi Rao, a prominent law professor who has never been a judge, wrote a series of op-eds in her time at Yale University that included incendiary comments about race, sexual orientation and sexual assault, as BuzzFeed explained. She is also rumored to be a contender for a spot on the Supreme Court, should one open up.

Writing for the Yale Herald in 1994, Rao made several disturbing claims about sexual assault. While stipulating that any man should be punished if he “forced the woman to have sex against her will,” she went on to argue that “the role of alcohol severely complicates the scenario.”

She suggested that drinking to excess may actually imply a woman’s desire to have sex, sending an exceptionally dangerous message to men.

“People often drink precisely so that they may limit their responsibility,” she wrote. “They want to forget about their papers and their problems. They want to have fun, and not think so hard.”

Perhaps these claims are sometimes true about people who drink, but in the context of her op-ed, they perniciously imply that a woman’s drunkenness is itself a sign that she’s interested in sex. And nowhere in the op-ed does Rao make the obvious point that incapacity — or even outright unconsciousness — should be taken as a sign that sex should be off the table.

She later adds: “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

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Again, that may be true (though in the example she discusses, it’s not actually even clear if the woman wasn’t tricked into getting drunk), but it’s still the case that the woman has become incapacitated, and thus should not be taken advantage of. But Rao never makes this point. Without it, her claims provide rhetorical cover for rapists.

In concluding the piece, she suggested that the “hysteria over date rape” — adopting deeply misogynistic language and diminishing assault — is somehow tied to the oppressive treatment of women in some Muslim counties.

In light of Kavanaugh’s confirmation to the Supreme Court, which was successful despite credible allegations of sexual assault, including assault that may have taken place under some of the exact conditions of drunkenness Rao discussed in the op-ed, her views are distressing. It’s also relevant, too, that President Donald Trump himself faces nearly two dozen accusations of sexual assault and misconduct.

“Neomi Rao is a renowned constitutional and administrative law expert,’ Justice Department spokesperson Kerri Kupec told BuzzFeed. “That is why the President nominated her to the D.C. Circuit. The views she expressed a quarter century ago as a college student writing for her student newspaper were intentionally provocative, designed to raise questions and push back against liberal elitism that dominated her campus at the time.”

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But Rao is not campus anymore — she’s up for a powerful appointment, and her views on consent and the nature of assault are clearly relevant. She will have to answer for them.


Cody Fenwick

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