Senator Hawley ’s Apostasy and the Substantive Due Process Problem

A week or so ago, the nomination of George Mason Law ’sNeomi Rao to fill Justice Brett Kavanaugh ’s seat on the D.C. Circuit ran into someunexpected headwinds when Missouri ’s freshman Republican senator, 39-year-old Josh Hawley, raised several concerns about her views, all centered around his opposition to abortion. Fearing that the nomination might fail in committee, theWall Street Journal’s editorial board took the extraordinary step last week of running notone buttwo house editorials questioning Senator Hawley ’s “judgment.” In the end, the senator came around. On Thursday, Prof. Rao, since July 2017 the head of the Office of Information and Regulatory Affairs and a highly credentialed critic of the administrative state, was voted out of committee on a straight party-line vote of 12-10. Butquestions linger about the motivation and thinking behind Sen. Hawley ’s opposition, not least because he himself is highly credentialed (Stanford, Yale Law, clerk for Chief Justice Roberts), and he came of age when the issues he raised were being hotly debated on the Right. Hewas quoted initially, for example, as saying that “I am only going to support nominees who have a strong record on life”—the “litmus test” approach to nominations more often associated with the Left. But he was also cited as concerned, more broadly, that Rao “might be comfortable with substantive due process,” the doctrine the Supreme Court employed in 1973 when it found a right to a...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs