Neomi Rao is one of the viciously anti-LGBTQ judges chosen by President Trump to pack the federal courts. Rao is also the author of a dissent last week that was, in the words of former U.S. Solicitor General Neal Katyal, “nutso,” “whackdoodle” and “profoundly antidemocratic.”
If you think that first sentence above has nothing to do with the second, you’re wrong.
The dissent was Rao’s attempt to protect Trump from a congressional investigation into his finances. Last spring, a Congressional committee subpoenaed Trump’s accounting firm for his financial records. Trump has been furiously fighting the subpoena, not exactly the act of a man who has nothing to hide.
In a 2-1 ruling, the U.S. District Court of Appeals — the same one that Brett Kavanaugh served on before his ascension to the Supreme Court — ruled that there was two centuries of legal precedent allowing Congress to seek financial records for an investigation.
Then there’s Rao’s dissent.
Rao doesn’t care about precedent. Instead, she comes up with a novel (see adjectives above) argument that the president can only be investigated if he’s been impeached. No one in their right mind has ever before interpreted the law to say that you have to impeach the president in order to investigate him.
To justify this claim, Rao resorted to communing with the ghosts of the Founding Fathers to determine “text, structure, and original meaning.” Like most mediums, she told her client (in this case Trump) exactly what he wanted to hear.
Rao went even one step further, suggesting that the courts would be able “to determine the scope of impeachable offenses.” In other words, Trump appointees would be able to override Congress’s constitutional right to decide what constitutes a high crime or misdemeanor.
As a reminder, Rao is the Trump appointee who said that gay people “defile” society. During her confirmation hearing, she refused to say whether the Supreme Court ruling that struck down desegregation 65 years ago was correctly decided.
So what does Rao’s recent dissent have to do with her anti-LGBTQ background? Two things.
First, Rao’s willingness to ignore legal precedent — one of the core principles of the law — is a sign that she and other Trump appointees of the same ilk would have no problem voiding any legal progress on which LGBTQ rights are based, despite established court rulings.
More ominously, Rao is signaling that the law can be discarded in service of protecting political goals, specifically, right-wing political goals. Rao is providing cover for Trump’s authoritarian impulses because he is Trump. You can bet that she wouldn’t have been so accommodating if the president in question had been Hillary Clinton.
The Trump judges aren’t concerned about justice being blind. They want to tilt the scales of justice in their favor.
Attorney General Bill Barr made this clear during a speech at Notre Dame last Friday when he decried “militant secularism” for trying “to destroy the traditional moral order.” Barr blamed the rise of secularism on everything from the opioid epidemic to “angry, alienated young males.”
What Barr is describing is, in his mind, the destruction of society. Under those circumstances, the law isn’t meant to be neutral. It’s meant to be in service of people like Barr and Rao who will save the country for the fraction of people that agree with them. That confirms Trump’s authoritarian impulses while also at the same time gutting the tradition of law.
In that sense, Rao’s — and Barr’s — anti-LGBTQ views are just one symptom of a bigger disease: the belief that the right wing is justified to wield power in any way possible to advance its causes.
Republicans in the Senate have already destroyed decades’ worth of norms, and Trump is claiming he can do anything he wants. With Barr and Trump’s court picks leading the way, that makes the law dispensable as well.