Rao is President Trump’s nominee to fill the seat on the Court of Appeals vacated by Brett Kavanaugh upon his elevation to the U.S. Supreme Court. She is a brilliant scholar who has been rated well-qualified by the American Bar Association. But she is being demonized as unfit for the bench for writing, a quarter century ago, what many parents tell their college-aged kids all the time: be careful; don’t drink too much; make good choices.
At a hearing on Tuesday, Senators grilled Rao about an article she wrote for a college newspaper suggesting that students should avoid excessive alcohol consumption as a way to protect themselves from date rape.
“A man who rapes a drunk girl should be prosecuted,” Rao wrote in the Yale Herald in 1994. “At the same time,” she wrote, “a good way to avoid a potential date rape is to stay reasonably sober.”
Rao’s column argued that both men and women possess moral agency and that “[i]mplying that a drunk woman has no control of her actions, but that a drunk man does, strips women of all moral responsibility.”
When pressed on this last week, Rao, now 45 and an expert on administrative law, said she “regret[s]” some of the things that she wrote in college and even described some of arguments as “cringeworthy.” But she noted that her comments about date rape were intended as a “common-sense observation” about “actions women can take to be less likely to become victims.”
And who can argue with that? Anyone who has followed the campus rape crisis knows that alcohol consumption increases the likelihood of acquaintance sexual assault. Although a victim’s drunken stupor never justifies a perpetrator’s behavior, those who stay sober are less likely to become victims or to find themselves in dangerous situations.
It goes without saying that we need strong civil and criminal laws against sexual assault. But legal prohibitions and penalties do not supplant parenting. And they don’t replace common sense. Although the law may sometimes serve as deterrent, it is primarily a means of seeking redress for harm that has already occurred. It doesn’t take the place of prevention.
All of us must try to stop sexual assault before it occurs. That means warning young people, particularly those on their own for the first time, to avoid dangerous situations, including binge drinking, staying out alone (or abandoning friends at a party), and “hooking up” with virtual strangers. This advice is meant to forewarn. It does not mean that someone who ignores this advice and ends up raped is at fault, any more than a child who ignores his mother’s warning not to talk to strangers is responsible for his abduction.
As parents, there is little we can do to keep our children safe after they leave the home, other than counsel caution. As a society, we cannot expect to reduce the number of campus sexual assaults if we continue to brand as “rape apologists” those who offer common sense. Yet, that is exactly what Neomi Rao’s detractors are trying to do.
The Washington Post, in an article entitled “Was everyone terrible 30 years ago?” calls Rao’s views “troubling” and obscenely lumps her into the same category as those accused of dressing in blackface and Ku Klux Klan regalia (running her picture in a spread with photos of those accused of vile acts of racism). How dare the Post?
There is, of course, more to this nomination than meets the eye. That’s because the court to which Rao has been nominated is regarded by many as the fast-track to the U.S. Supreme Court. Four of the current Justices (Chief Justice Roberts along with Justices Thomas, Ginsburg, and Kavanaugh) served on the D.C. Circuit before joining the High Court.
The left views Rao as a dangerous potential Supreme Court nominee — precisely because she is a brilliant conservative who is also a woman and a minority capable of undermining their mantra of white, male oppression. And so they will use every disgusting trick in the book, including guilt by association,to stop her now.
Jennifer C. Braceras is a senior fellow with Independent Women’s Forum and a former commissioner on the United States Commission on Civil Rights. Follow her on Twitter: @J_Braceras.