14:47, March 01 116 0 abajournal.com

2019-03-01 14:47:21
Justice Thomas boosts DC Circuit nominee in conversations with two senators

Justice Clarence Thomas

U.S. Supreme Court Justice Clarence Thomas.

U.S. Supreme Court Justice Clarence Thomas has had phone conversations with at least two Republican senators in which he shared his positive views on federal appeals court nominee Neomi Rao, one of his former law clerks.

One senator, Tim Scott of South Carolina, told the Washington Post that Thomas called him “just to share with me his positive experience and how smart she was.”

The other senator, Josh Hawley of Missouri, told the newspaper that he called Thomas. The justice reportedly told Hawley that Rao has an originalist judicial philosophy, the Post said, relying on information from an unnamed source.

The Senate Judiciary Committee voted Thursday to advance to the full Senate Rao’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit, according to the Post, Politico and the National Law Journal.

Hawley was among the 12 Republicans on the committee who voted their approval. Previously, he had expressed concern that Rao would expand abortion rights. Scott, who is not on the committee, is undecided.

Thomas has previously worked behind the scenes to support judicial nominees, according to the Washington Post. In the 1990s, he tried to help several black judicial nominees, including some nominated by Democrats.

Rao is currently the administrator of the Office of Information and Regulatory Affairs. She previously came under fire for some of her college writings, including an article saying that “a good way to avoid a potential date rape is to stay reasonably sober.” She apologized for insensitivity in a letter to Senate Judiciary Committee leaders.

New York University law professor Stephen Gillers told the Post it’s unknown whether it is unusual for a Supreme Court justice to speak with senators on behalf of a nominee because such conversations wouldn’t necessarily have to be disclosed.

Gillers noted a provision in the Code of Conduct for United States Judges (which doesn’t bind Supreme Court justices). It says judges may participate in the process of judicial selection, in part by responding to “official inquiries” about a person being considered for a judgeship.

Justice Antonin Scalia also was said to have done some informal lobbying, according to a CNN column written by David Axelrod, who was an adviser to President Barack Obama.

Axelrod described a request that Scalia made during a White House Correspondents Association dinner seven years before his death. Scalia said he hoped that Obama “sends us someone smart” to fill the seat being vacated by retiring Justice David Souter.

“Let me put a finer point on it,” Scalia had reportedly said. “I hope he sends us Elena Kagan.”

Obama instead nominated Sonia Sotomayor to fill Souter’s seat. He later nominated Kagan when Justice John Paul Stevens retired.

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