Sen. Sheldon Whitehouse, a Democrat from Rhode Island, seems a bit obsessed with Judge Neomi Rao. She’s been a judge for only a year, and yet, he frequently insults her and spins conspiracy theories about her.
Most recently, he lashed out at Rao, calling her “a cartoon of a fake judge” and promising that, wherever she is, “expect a lot of Trumpy dirt to follow.”
What did she do to provoke this latest outburst? She was randomly assigned to sit on the panel of three judges who will review the recently filed writ of mandamus in the Michael Flynn case.
In his writ, Flynn asks the Court of Appeals to force District Judge Emmet Sullivan to grant the government’s motion to dismiss the criminal case pending against him.
After Flynn filed his writ, the panel unanimously issued an order requiring Sullivan to respond to it. There’s nothing untoward about that. The rules of appellate procedure provide for it, and it has been done in other cases. What’s more, no party opposes the relief Flynn seeks, so the only way to discover why Sullivan refuses to grant to motion is to ask him.
So, why is Whitehouse once again targeting Rao? Could it be that he is intimidated by her? He knows that he can’t address the merits of any of her opinions, and she’s too smart and rigorous for his two-second-soundbite style.
He also probably doesn’t want the public looking too closely at her work. If they do, they’ll see that Rao is exactly the sort of judge anyone would want deciding their case.
Consider the legal challenge to the federal prison execution protocols. The three judges in that case (Rao, David Tatel, and Gregory Katsas) wrote four opinions spanning 88 pages just to determine what the word “manner” means.
The issue in that case was whether a death penalty protocol was implemented “in the manner prescribed by the law of the State.” All three judges disagreed about what “manner” meant.
Katsas thought it meant only “method,” such as lethal injection or electrocution. Rao disagreed with her fellow Trump appointee, concluding that "manner" was broader than that, encompassing a state’s laws and binding regulations. Tatel, a Clinton appointee, agreed with Rao in part, but would have expanded her definition of "manner" to also encompass prison protocols.
The point of this discussion is not to explain a complex legal conundrum or to address the merits of that particular case, but to show what good judges do every day. They wrestle with hard issues, debate the law with one another, and reach reasonable opinions, even when they disagree.
Contrary to Whitehouse’s latest insult, Rao is as much a “real judge” as her colleagues. Of the four opinions, hers was the longest. Tatel devoted part of his opinion to complimenting hers.
Also consider the case of the 5-cent price increase in stamps. Rao wrote the opinion for a unanimous panel that includes Katsas and Judge Patricia Millett, an Obama appointee.
The issue there was whether the Postal Regulatory Commission complied with the Administrative Procedure Act when it raised the price of the “Forever Stamp” by 5 cents. This is not riveting stuff to most people, but Rao dove in with the aplomb of a gold miner looking for a shiny speck in a pan of sand. After sifting through 750 pages of briefs and supporting documents and making sense of the law, she and her colleagues agreed that the commission violated the Administrative Procedures Act by failing to provide an adequate explanation and failing to respond to public comments.
This is real judging.
It’s hard. It requires a level of engagement that most of us give only to issues that excite us. Yet, Rao does it time and time again. She scrutinizes cases with the precision of a scientist examining specimens under a microscope. In that way, Rao has proved that she is a good judge.
Whitehouse’s problem with her is, fundamentally, that he doesn’t want good judges. He wants good stooges who will reach results that he likes politically.
Rao is no stooge. When anyone looks closely at her approach to judging, they can’t help but feel confident that every case she has is in good hands.
And that drives Sheldon Whitehouse nuts.
This piece originally appeared in the Washington Examiner