Either Amy Coney Barrett or Barbara Lagoa would be a strong pick. Timing may favor the latter.
NRPLUS MEMBER ARTICLE
resident Trump has announced that he will pick a woman for the Supreme Court seat vacated by the late Ruth Bader Ginsburg. But which one?
The New York Times reports that in a phone call with Senate majority leader Mitch McConnell, Trump is said to have mentioned two female appellate court judges — Amy Coney Barrett and Barbara Lagoa — as being on his short list. What do we know about them?
Barrett has been initially viewed as the early favorite. Jonathan Swan of Axios reported in 2019 that Trump had said of Barrett: “I’m saving her for Ginsburg.” Axios said he used that exact line with several people, including an adviser two days before revealing Kavanaugh’s nomination.
The high standing in which Barrett is held by conservative lawyers and activists is undisputed. She is only 48 years old and would probably serve on the court for a generation. Her academic writings indicate that she’s pro-life. But Bloomberg Law reports that in a 2013 speech she said:
The fundamental element, that the woman has a right to choose abortion, will probably stand. The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.
Her views on interpreting the Constitution are in the same mold as those of the late Justice Antonin Scalia.
On a personal level, Barrett is engaging and articulate, and she has a powerful life story. She is the mother of seven children, two of whom she and her husband adopted from Haiti.
An adviser close to Trump says Barrett also “has the inside track in the sense that she was kind of battle-tested for having gone through a confirmation [for the appeals court] already.”
But another Trump appointee who has gone through an appeals-court confirmation battle has suddenly landed on the short list. Judge Barbara Lagoa, of Florida, who is 52 years old, has served on the Eleventh U.S. Circuit Court of Appeals since last December. While Barrett attracted considerable opposition and was confirmed by a 54 to 42 vote, Lagoa sailed though on a mostly bipartisan vote of 80 to 15.
Lagoa is the daughter of Cuban parents who fled Castro’s dictatorship and moved to Miami. She has said that her father had to give up his “dream of becoming a lawyer” because of Castro.
Born in 1967, she inherited her family’s anti-Communism and served as a pro bono lawyer for the Miami family of six-year-old Elian Gonzalez. In 2000, Elian’s Miami relatives fought unsuccessfully to prevent his return to Cuba by the Clinton administration.
A former federal prosecutor, Lagoa was appointed to a state appeals court by then-governor Jeb Bush in 2006. In 2019, she was appointed by Florida governor Ron DeSantis, a hero of conservatives, as the first Hispanic woman on Florida’s supreme court. After less than a year on that bench, Trump elevated her to the Eleventh Circuit.
When asked about Lagoa on Saturday, Trump was effusive: “She’s an extraordinary person. I’ve heard incredible things about her. . . . Highly respected.”
Trump has told allies he sees political advantages in appointing Lagoa. The mother of three daughters, she would be only the second Hispanic justice to ever serve. The first was Obama appointee Sonia Sotomayor.
Lagoa’s heritage is one of several reasons that 26 Senate Democrats voted to confirm her in 2019. Among those in her corner was California’s Dianne Feinstein, the top Democrat on the Senate Judiciary Committee. Democrats might find it difficult to viciously attack Lagoa, given how many of them rely on Hispanic voters in the November elections.
Lagoa’s nomination would be viewed favorably in Florida, a state with 29 electoral votes. The last three major statewide elections there — the 2016 race for president and the 2018 races for governor and U.S. senator — have all been won with less than 51 percent of the vote.
Although she has served less than a year as a federal appeals-court judge, similarly short stints have not been a barrier to confirmation to the high court in the past. Former justice David Souter had been an appeals-court judge for only two months when he was appointed in 1990. Clarence Thomas had been an appeals-court judge for only 15 months when he was appointed in 1991.
Conservatives who have been disappointed over past appointees who have drifted to the left — see Anthony Kennedy and John Roberts — have expressed concern that Lagoa lacks a clear conservative footprint on the bench. In chat rooms, some conservatives have even descended into personal attacks: “Harriet Miers with a tan,” “John Roberts with better hair,” “Sotomayor 2.0.”
That’s not fair. The conservative footprint that Lagoa has left isn’t a deep one, but it’s solid. Democrats demanded that she recuse herself from a case involving felons’ voting rights in Florida that she had previously participated in as a state judge. She fought back with élan and bite.
That case was eventually decided by Lagoa’s Eleventh Circuit Court, where she joined the court’s six-to-four majority decision to uphold a Florida law requiring nearly 800,000 former felons in the state to settle their court fines and fees before they regain the right to vote. She declared Florida’s law reasonable: “It falls to the citizens of the state of Florida and their elected state legislators, not to federal judges, to make any additional changes to it.”
There is no doubt the organized Left would strenuously oppose Lagoa. The Alliance for Justice, a very left-wing group, issued an extensive attack on her decisions involving business and criminal-justice issues. AFJ claimed that Lagoa had been “screened” by the Federalist Society for her Florida supreme-court appointment. It also fretted that she had been endorsed by the pro-tort-reform Florida Justice Reform Institute and the Florida Family Policy Council, a group of social conservatives.
The fear that some Trump advisers have is that Barrett’s staunchly expressed religious views would make her lose the votes of Senators Susan Collins and Lisa Murkowski, both of whom have said that at a minimum they oppose filling the vacancy before the November election. But the president also has to worry about Senators such as Josh Hawley of Missouri, who has said he will refuse to vote for a nominee who won’t state publicly that Roe v. Wade was “wrongly decided.”
“The Supreme Court judicial selection process with the president is a very fluid one,” a “source familiar with the matter” told Axios. “He floats in and out of these discussions over a period of time.”
No one knows what Trump will decide until he makes his announcement, but the peculiar timing of this appointment augurs well for Barbara Lagoa’s chances. If the vacancy had occurred in the spring, it’s likely Amy Coney Barrett would have remained the favorite.