WILL IT BE AMY OR BARBARA?

Trump’s Pledge to Pick Woman For Court Leaves Two Frontrunners

 

By David Yaffe-Bellany and Josh Wingrove

 

Bloomberg

September 20, 2020

 

Since Justice Ruth Bader Ginsburg died Friday night, President Donald Trump has largely winnowed a list of dozens of potential replacements down to a handful, and now just a pair, of front-runners.

Appeals court judges Amy Coney Barrett and Barbara Lagoa are emerging as the most likely to be picked after Trump said Saturday at a rally in North Carolina that he planned to select a woman. A third judge, Amul Thapar, had also been in the running until Trump’s comment. All three appeared on a long list of possible high-court picks that Trump updated earlier this month. Barrett and Thapar were among the nominees whom Trump considered before selecting Brett Kavanaugh for the court in 2018.

The judges also have something else in common: They’re young, and have the prospect of serving on the top U.S. court for decades. Trump will also see inherent political advantages in the nomination of each. At Trump’s rally, he polled the crowd to cheer whether it was a woman they wanted.

Amy Coney Barrett, 48

A favorite of social conservatives, Barrett was appointed to the U.S. Court of Appeals for the Seventh Circuit in 2017 after a tough confirmation battle. Trump has said privately before that he was saving Barrett as a nominee to replace Ginsburg, further suggesting he’s leaning toward picking a woman as his next nominee.

“She’s very highly respected, I can say that,” Trump told reporters at the White House Saturday, when asked about her. He later said at a rally: ”I think it should be a woman -- because I actually like women more than I like men.”

Senate Democrats argued that Barrett’s Catholic faith would sway her legal analysis, especially on issues like abortion. “Dogma lives loudly within you,” Senator Dianne Feinstein, a California Democrat, said in a widely reported exchange that enraged conservative groups.

Barrett opposes abortion, a key test for several Republican senators, but said in a 2013 speech at the University of Notre Dame, where she is a longtime member of the law faculty, that it was “very unlikely” the Supreme Court would ever overturn Roe v. Wade, the 1973 ruling that established a legal right to an abortion in the U.S.

“The fundamental element, that the woman has a right to choose abortion, will probably stand,” she said, according to an account of her remarks in the student newspaper. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”

A Barrett nomination would please staunch social conservatives who were disappointed with Justice Neil Gorsuch’s decision in a high-profile gay and transgender rights case during the last Supreme Court term. And Trump has spoken favorably about her in the past. She clerked for former Justice Antonin Scalia -- a connection that appealed to Trump when he considered her for a high-court pick in 2018, according to someone familiar with the process.

“She would be ideal in my mind. In fact, I would hope that maybe it ends up going that route, but we’ll wait and see there,” Indiana Senator Mike Braun, a Republican, said in a telephone interview. The appointment of Brett Kavanaugh in 2018, on the eve of midterm elections, was crucial in driving Republican support at the polls, he said, crediting it with helping him and Missouri Senator Josh Hawley win their races. “Republicans would expect that when we hold the Senate, and we’ve got the presidency, this is the most important thing to get done.”

Barbara Lagoa, 52

Barrett was initially seen as the most likely pick but by Saturday the stock of Lagoa, a Cuban-American from Florida, was rising in the White House, according to people familiar with the fast-moving process.

The Miami-born judge has seen a quick ascent. Florida Governor Ron DeSantis, a Trump ally, appointed her to the Supreme Court of Florida in 2019 -- she was the first Cuban-American woman to serve on the court, and is bilingual -- before Trump nominated her to the Eleventh Circuit in September a year ago. She was confirmed in December. She served in private practice and as an Assistant U.S. Attorney before being appointed to Florida’s Third District Court of Appeal by then-Governor Jeb Bush.

“She’s an extraordinary person, I’ve heard incredible things about her,” Trump said Saturday. “I don’t know her. She’s Hispanic and highly respected.”

Lagoa’s legal bona fides hold some political appeal for Trump as the election bears down -- a woman of Hispanic heritage from Florida is a trifecta of forces that will help make or break Trump’s fate this fall. He’s trailing Biden in Florida and trailing widely among women, but polls show he’s doing better among Hispanic voters than he did in 2016. Lagoa’s parents fled Cuba in 1966. “I owe my parents everything,” she said in her 2019 confirmation hearing.

During that hearing, Feinstein questioned her over a series of rulings that overturned damages awarded to employees who’d alleged retaliation and discrimination. She replied that she was following the letter of the law in each case. “To me, the term ‘judicial activism’ means that a judge is reaching a result based on the judge’s own personal preference. And that is antithetical to what I believe a judge should be,” she later said.

Lagoa said she sometimes personally disagrees with her decisions, and that originalism is an important principle for judges in interpreting the meaning of the U.S. Constitution. “If we are not bound by what the Constitution means, and it’s -- it is ever-changing, then we are no different than the country that my parents fled from which is Cuba,” she said. The biography submitted to the Senate ahead of her hearing said she’d been a member of the conservative Federalist Society since 1998. She was confirmed by the Senate by a vote of 80-15.

Amul Thapar, 51

 

Thapar’s time on the shortest version of Trump’s list was brief. Late Friday and through Saturday, he was seen as a top-three with Barrett and Lagoa. Trump’s declaration that he will pick a woman shelves Thapar’s candidacy, but his name will likely continue to swirl for future appointments if a Republican is in the White House. 

He is the first South Asian Article III judge. He previously served on the U.S. District Court for the Eastern District of Kentucky and as the U.S. attorney for the Eastern District of Kentucky. Thapar has ties to Senate Majority Leader Mitch McConnell, of Kentucky, who personally introduced him and praised him in his 2017 confirmation hearing.

In that hearing Thapar stressed that he believed “judicial independence means fidelity to the Constitution and the rule of law.”

Born in Michigan and raised in Ohio, Thapar’s a former member of the Federalist Society, and served as an adjunct professor at the University of Virginia School of Law and at Vanderbilt Law School.

In questioning, Illinois Democrat Dick Durbin said that Thapar had been a part of “pretty conservative groups when it comes to conversations about the Constitution and how it’s treated.” In that hearing, under questioning from Democratic Senator Richard Blumenthal of Connecticut, Thapar agreed that Roe v. Wade is long established and well accepted precedent, but was grilled over his conservative ties and presence on Trump’s list.

“Tell me why we should not see you from all of these signals as somebody who is basically waving a flag saying, ‘I’m ready to play by those rules, I’m willing to rule for Republicans in every single political contest case that we get?’” Democratic Senator Sheldon Whitehouse of Rhode Island asked Thapar. The nominee said he follows the letter of the law. “I’m my own judge, and I hope my track record speaks to that,” Thapar said.

Thapar was nominated to the district court by George W. Bush in 2007 before Trump nominated him to the Sixth Circuit in 2017, where he was confirmed by the Senate by a vote of 52-44.