The Senate Judiciary Committee—Lindsey Graham, chairperson in charge—met on Tuesday to question another judicial nominee whom the full Senate will ram through shortly, and who will be a plague on us unto the generations. This was a woman named Neomi Rao, who has been nominated to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals now that PJ and Squi's old beer buddy is on the Supreme Court.

Ms. Rao is also quite the piece of work. Some of her earlier writings are replete with the kind of opinions that we've come to expect now that the president* has subcontracted his judicial nominees to the folks at the Federalist Society. From BuzzFeed News:

In pieces reviewed by BuzzFeed News that Rao wrote between 1994 and 1996 — she graduated from Yale University in 1995 — she described race as a “hot, money-making issue,” affirmative action as the “anointed dragon of liberal excess,” welfare as being “for the indigent and lazy,” and LGBT issues as part of “trendy” political movements. On date rape, Rao wrote that if a woman “drinks to the point where she can no longer choose, well, getting to that point was part of her choice.”

This particular passage piqued the interest of members of the committee, particularly Kamala Harris and my old friend, Joni Ernst, Republican of Iowa. From Vox:

In response to the questions she fielded, Rao argued Tuesday that she had also emphasized that rape is a “terrible crime” and reiterated that “no one should blame a victim.” She repeatedly said she didn’t agree with the views she espoused in college, dubbing them “cringeworthy.” Still, she appeared to maintain her larger point about sexual assault, saying, “I tried to make the commonsense observation that women can take certain steps to make sure they’re not a victim.” That thinking puts the onus of preventing sexual assault on victims, an idea that Sens. Kamala Harris (D-CA) and Joni Ernst (R-IA) pressed her on.



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.@SenJoniErnst tells Rao about her writings shifting blame onto women for rape, "I had a chance to review a number of your writings while you were in college. They do give me pause. Not just from my own personal experiences but regarding messages we send young women everywhere." pic.twitter.com/iMMrFcGEjz — Aaron Rupar (@atrupar) February 5, 2019

“We have to change the culture of sexual violence,” said Ernst, who recently spoke publicly about her experiences as a victim of sexual assault, becoming one of the highest-profile Republicans to do so. “Young women need to feel comfortable sharing the experiences they’ve endured.” Republicans argued that writings from Rao’s college days should hold less weight given the time that’s passed. But Harris noted that Rao’s recent actions as a Trump administration official could hurt sexual assault victims as well.

Rao, in her role as head of the White House’s Office of Information and Regulatory Affairs, has supported the Trump administration’s rollback of Title IX protections for victims of sexual assault on college campuses. These rules would reduce the mandatory reporting requirements institutions currently face on the matter and require live hearings on sexual assault allegations where accusers could even be cross-examined by a representative of their attackers.

So, that takes care of the "relevance" dodge regarding Rao's college writings. She's moved on to putting those views to work on behalf of an administration* dedicated to enshrining them into policy.

Kamala Harris Bill Clark Getty Images

And then, later, Senator Mazie Hirono opened up an entirely new line of questioning. It began with Hirono's asking Rao about something the latter had written in opposition to affirmative action, which relied on what Rao called "dignatory harm." Hirono asked her to explain the concept. Rao said:

The term dignity is used by the Supreme Court and other constitutional courts in other countries and that was an attempt as an academic to explain the different senses in which dignity was used in those cases.

Which is about where they began talking about dwarf-tossing.

Back in 2011, Rao wrote a post at The Volokh Conspiracy blog in which she defended on libertarian grounds the practice of dwarf-tossing, a popular spectator sport in the kind of bars where Florida Man drinks before going out and doing the Florida Man thing that gets him on TMZ. Basically, Rao wrote, if someone wants to get tossed, it's that person's right to get tossed:

In a much-discussed French case, Mr. Wackenheim, a dwarf, made his living by allowing himself to be thrown for sport. The mayors of several cities banned dwarf tossing events. Mr. Wackenheim challenged the orders on the grounds that they interfered with his economic liberty and right to earn a living. The case went to the Conseil d’Etat (the supreme administrative court), which upheld the bans on the grounds that dwarf throwing affronted human dignity, which was part of the “public order” controlled by the municipal police. The Wackenheim case demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.

Mazie Hirono Pool Getty Images

The issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy. Rather these examples demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice, but rather represents a particular moral view of what dignity requires. These laws do not purport to maximize individual freedom, but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).

So, Senator Hirono wondered, how does a defense of dwarf-tossing square with an idea of "dignatory harm"? Rao replied:

There was an individual, Mr. Wackenheim, who made his living doing that, and he said that this ban affected his dignatory interests. But, in my article, I don't take a position one way or another on these issues.

Hirono brought Rao up short, correctly pointing out that there is no way to read that blog post without coming to the conclusion that Rao believes the French courts should have given dwarf-tossing a good leaving-alone. But Rao probably has the votes and that's what matters. For the next few decades, we're all going to get tossed around.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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