During her confirmation hearing, Neomi Rao – then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit – attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao has been sworn in to a lifetime appointment of passing judgment with the full effect of the law, it's worth looking at another dispute that arose during the hearing – namely, how she should approach her legal and ethical responsibility to recuse herself from cases involving rules she worked on as OIRA administrator.
In an exchange with Sen. Dianne Feinstein (D-Cal.) during the hearing, Rao pointedly refused to commit to recusing herself from such cases, only meekly promising to make recusal decisions on a case-by-case basis. Belying this naked attempt at obfuscation, though, the applicable law on judicial recusal makes it crystal clear that in Rao's case, recusal is anything but the "close call" she would like to pretend it is. In its broadest terms, that law – not a guideline, but a law – provides that sitting federal judges "shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned" (emphasis mine). Needless to say, Rao's involvement as the OIRA administrator in the review of a particular rule would raise several significant and troubling questions about her impartiality if that rule were to come before her in the context of a legal challenge.
As a threshold matter, the role of OIRA's centralized review process, as spelled out in Executive Order 12866 and other related successor orders, is to evaluate a draft rule's legal and policy underpinnings, particularly when those issues involve technically difficult or controversial questions. Unsurprisingly, disputes over precisely these issues would be at the heart of any legal challenge to the rule once it is finalized.
The fact that a rule has cleared this OIRA review process under Rao's watch suggests two things about Rao's relationship to the rule's substance. First, it suggests that Rao has given the rule a great deal of thought, leading her to form an opinion about the legal and policy merits of that rule. As such, she would be unable to approach a later legal challenge to that rule with anything resembling an open mind. Second, it suggests that to at least some degree, Rao actually supports or agrees with the legal and policy basis for the rule. (Or in the event that she disagrees with the legal and policy basis but was somehow overruled, all the more reason to think she wouldn't have an open mind.) This raises the risk that she would approach a judicial challenge against the rule's legal or policy justifications with an inherent skepticism or inherent support and thus would be unlikely to serve as a neutral referee in disputes regarding those legal and policy matters.
Indeed, the distinctive role the OIRA administrator plays in the centralized review process further underscores these concerns. As the defenders of unitary executive theory are fond to point out, one of the most significant responsibilities that Executive Order 12866 places on OIRA administrators is to "provide meaningful guidance and oversight so that each agency's regulatory actions are consistent with . . . the President's priorities." The order further empowers the OIRA administrator to mediate any disputes that might exist between the president and a rulemaking agency regarding that agency's draft rule. And when a resolution cannot be reached, the OIRA administrator can effectively overrule the agency, sending it back to the drawing board.
Bearing all this in mind, the role of OIRA administrator is not all that dissimilar from that of a lobbyist – hundreds of which have lined up at OIRA over the years to try to ensure that pending rulemakings are "consistent" with their client's "priorities." The only differences are (1) that the OIRA administrator's client happens to be the president and (2) that the president's views nearly always win out at OIRA, to the extent consistent with applicable law.
If a former lobbyist were elevated to the position of federal judge, there would be no question that they should be required to recuse themselves from cases involving challenges to any particular rules that they had worked on as a lobbyist. None of the differences between Rao's former work as OIRA administrator and that of a garden variety lobbyist can justify a different conclusion.
In sum, relevant recusal law would seem to weigh heavily in favor of a blanket recusal for Rao in all cases involving rules that underwent OIRA review during her tenure as OIRA administrator. But, if Rao still insists upon making the recusal determination on a case-by-case basis, then I would suggest the following categories of cases for which the argument for recusal would be especially strong:
In all likelihood, the bulk of the rules that OIRA reviewed during Rao's tenure as administrator would fit one or more of these conditions, making these rules of thumb largely duplicative of the blanket recusal she should adopt anyway. But, they're illustrative of the many reasons that Judge Rao should recuse herself from cases involving rules that underwent OIRA review during her tenure.
And it is certainly worth giving the issue of Rao's recusal from these types of cases careful consideration since the D.C. Circuit Court of Appeals serves as the venue for a disproportionate number of legal challenges against federal regulations. In any event, given the nationwide recognition of the D.C. Circuit's unique expertise on matters of administrative law and regulatory policy, the decisions it renders in such cases tend to have strong persuasive authority in the other federal judicial circuits. What's more, the U.S. Supreme Court's relatively small docket (along with its general tendency to avoid cases involving challenges to federal regulations) means that decisions by the D.C. Circuit tend to serve as the last word.
In short, worries about how Rao approaches her recusal decisions are not merely academic. In the coming years, she will likely face dozens of opportunities on which to make a "case-by-case" determination. Sadly, Rao's record as OIRA administrator provides little hope that she would hold herself to the highest levels of professional ethics in making these decisions. As a federal judge, though, she must do better. The rules of thumb outlined above offer some guidance for doing just that.
Image at top by Wikimedia Commons user AgnosticPreachersKid, used under Creative Commons license CC BY-SA 3.0.