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Pros And Cons For Three Top Contenders To Replace Ginsburg On Court


President Donald Trump will make his third nomination to the Supreme Court on Saturday. The initial plan was to make the nomination very quickly following the death of Associate Justice Ruth Bader Ginsburg last Friday, but it has been delayed so that the country may properly mourn the justice known for her support of liberal social causes. Ginsburg was appointed by President Bill Clinton 27 years ago. A reliable vote for the left block of the court, she was also beloved by her fellow justices for her friendship and sparkling wit.

Filling the vacancy is a priority for conservatives, many of whom have been frustrated by Republican presidents repeatedly squandering judicial nominations on justices who disappoint. One in four Trump voters said that they voted for him in 2016 because of how important the Supreme Court was. President Trump had put out a list of potential nominees and promised to pick from that list. He did so when he nominated associate justice Neil Gorsuch to the bench. Later he updated the list with associate justice Brett Kavanaugh and other candidates. Just weeks ago he updated it again. He has said the next nominee will be a woman.

While Democrats and NeverTrump adherents have begged Republicans not to fill the seat, some threatening to pack the court or otherwise retaliate if the Constitutional process proceeds, Republican voters and those they elected have declined to pursue failure as their first strategy.

Most observers believe that the top two contenders are Judge Amy Coney Barrett and Judge Barbara Lagoa. Here’s a quick look at both, along with a non-female on the list who might be worth considering.

Judge Amy Coney Barrett

Judge Amy Coney Barrett is widely considered the front-runner. As detailed in Justice on Trial, the book this writer co-authored with Carrie Severino, Barrett was heavily considered for the previous vacancy and President Donald Trump has repeatedly talked about his support of her in the interim.

Barrett currently serves on the U.S. Court of Appeals for the Seventh Circuit. While she had long made a name for herself in legal circles, she rose to public prominence when she withstood smears against her Catholic faith from Sen. Dianne Feinstein, D-Calif. “I think in your case, professor, when you read your speeches, the conclusion one draws is that the Dogma lives loudly within you,” Feinstein said. Meant as an insult, the phrase became a reverse battle cry for Americans who are mocked for being religious. Barrett kept a good disposition while being grilled by Democrat senators for her Constitutional views on the Second Amendment, the sanctity of life, and immigration.

She is the mother of seven children, two of which were adopted after the devastating earthquakes in Haiti. Some Court watchers have worried that the justices are all too similar, all sharing Ivy League backgrounds. By contrast, Barrett attended Notre Dame Law School, where she later taught. Barrett is the potential nominee most viewed as a principled female voice for the Court, unafraid to assert herself on the country’s most salient issues.

Barrett’s commitment to originalism is strong, somewhat reminiscent of Associate Justice Antonin Scalia’s jurisprudence. She clerked for Scalia, incidentally. Her dissent in Kanter v. Barr is memorable for how much she looked at the Founding Fathers’ views on gun rights.

In that case, Rickey I. Kanter pleaded guilty to one count of federal mail fraud. He’d falsely claimed his company’s therapeutic shoe inserts were Medicare-approved. That meant that under federal and Wisconsin law, he couldn’t possess a firearm. Most of the court agreed, but Barrett looked at how early Americans viewed violent felons vs. non-violent felons such as Kanter, arguing that he should not lose gun rights for his particular crime.

The most contentious Supreme Court battles are when a Republican nominates someone to replace a liberal justice. So if the Kavanaugh confirmation, which replaced moderate associate justice Anthony Kennedy with a clerk somewhat in his mold, was hot, Ginsburg’s replacement battle could be apocalyptic.

Like associate justice Scalia, she has shown herself to be unfazed by attacks, even attacks on their shared faith.

Judge Barbara Lagoa

While there are many qualified women on Trump’s latest list of potential nominees, one name that was just added excited many observers. Judge Barbara Lagoa’s judicial tenure began in 2006 when she was appointed by Gov. Jeb Bush to the Florida Third District Court of Appeal. In 2019, after a short stint on the Florida Supreme Court, she received her current appointment to the Eleventh Circuit Court of Appeals. Florida Gov. Ron DeSantis, who has made judicial nominations a key priority of his successful administration in Florida, appointed Lagoa to the Florida Supreme Court, where she caught the attention of the Trump administration. Lagoa graduated from Columbia Law School in 1992. Unlike the other candidates, she did not complete a federal clerkship.

Lagoa’s distinguished tenure in the Florida state courts makes her a compelling nominee for President Trump as he seeks reelection. She was the first female Cuban American on the Florida Supreme Court and would be the second Hispanic judge to serve on the United States Supreme Court. Her husband, an attorney in his own right, has previously served as counsel to Governors Charlie Crist and Jeb Bush. Lagoa, who is praised by DeSantis, and has an excellent reputation among judicial conservatives. Some of those pushing her nomination believe it would help President Trump score points in the battleground of Florida in an election year. Lagoa served on the legal team advising Elian Gonzalez’s family in Florida.

Like Chief Justice John Roberts, Lagoa’s background is in corporate litigation, and is somewhat an unknown quantity. Her state court service did not require her to wrestle with federal law on a regular basis. And she has had only eleven months as a federal judge. While Democrats joined with Republicans to support her recent nomination to the federal bench, it is likely Democrats would go after her for lack of experience or qualifications.

The reason why Lagoa might not be as high on Trump’s list as she would otherwise be is because previous Republican nominations of judges without much of a record have gone extremely poorly for conservatives. Associate Justice David Souter was chosen in part for his lack of record, viewed as a “stealth candidate.” As he went through his confirmation hearings, conservatives realized that his judicial philosophy was antithetical to the originalist Constitutionalism they prefer, but it was too late. Other justices have been too pliable to the pressures of Washington, D.C., bending to political pressure instead of remaining firm in adherence to the law. Republicans have overwhelmingly nominated the bulk of Supreme Court justices over the past few decades. And yet, they have suffered defeats at the Court as various justices have bent to political pressure. Given this history, the conservative judicial community argues that President Trump should nominate a committed originalist with a proven track record, rather than risk another Souter.

Senator Mike Lee

He’s not a woman, so there is no way he’ll be the initial nominee, but it’s also worth looking at Mike Lee, who currently serves as the senior United States Senator from Utah. Picking one of the senators on the list might be the approach to take if the initial confirmation process is successfully derailed by attacks from the media and Democrats.

The son of Rex Lee, the United States Solicitor General under Ronald Reagan, Sen. Lee has been a principled advocate of the Constitution’s original understanding in the halls of Congress. In a sea of senators who prefer grandstanding, Lee constantly brings discussions back to the Constitution as his guide. Lee twice clerked for Justice Alito, cementing his commitment to the rule of law. As a member of the Judiciary Committee, Lee can navigate the hurdles of an accelerated confirmation process. He has helped shepherd hundreds of nominees through the Senate with historic success. Under Lee’s watch, no circuit court vacancies exist for the first time in forty-plus years.

Lee also has a close relationship with the swing votes in the Senate. Mitt Romney serves as the junior senator from Utah and would be unlikely to oppose his fellow Utahan. Moreover, the Senate is a close-knit body, where collegiality is paramount. Any sitting member would be hard pressed to vote against a colleague. If confirmation complications make other leading nominees too risky, Lee could be a reliable choice that can succeed despite the necessary urgency.  Lee may be the most likely candidate to overcome the complications of staging and passing a vote in the short window before the election.

Lee would also increase the diversity on the Court by becoming the first Latter-day Saint justice. As a member of a minority faith, Lee would be especially attuned to the First Amendment disagreements that have splintered the Court in recent years. Lee would increase diversity in another way. He attended BYU for both his undergraduate and law degrees. His nomination could end the Court’s Harvard/Yale monopoly and signal a turn away from elitism in the appointment process.

To be sure, the president has expressed a preference for selecting a woman to fill Justice Ginsburg’s seat, so any male candidate is a dark horse at best.  But with a compressed timeline—and a real need to ensure Sen. Romney remains supportive of filling this vacancy—Sen. Lee could emerge as a consensus choice late in the process.  It should also be remembered that Justice Stephen Breyer is 82-years-old and could vacate his seat during a second Trump administration.  Lee, already under real consideration for this vacancy, would immediately move to the top of any list for filling a Breyer—or other—vacancy on the Court.