As the race to confirm a replacement for Ruth Bader Ginsburg heats up, the White House has hinted at two possible candidates and President Trump has promised to name a woman to replace the popular liberal jurist. One candidate was a finalist for Trump’s last appointment to the High Court while the second possibility is a Latina who might help Trump with Hispanic voters.
On Saturday, President Trump told reporters, “It will be a woman, a very talented, very brilliant woman. I haven’t chosen yet, but we have numerous women on the list.”
The statement, which was reminiscent of Joe Biden’s pledges to pick a woman for his running mate and to appoint a black woman to the Supreme Court, has not been criticized by Republicans, who normally oppose such demographic tests. In fact, a Republican crowd at a Trump rally in North Carolina cheered the idea of a gender-based pick.
A leading candidate for the seat is Amy Coney Barrett, a Seventh Circuit judge from New Orleans, who graduated from law school at Notre Dame. The Seventh Circuit is headquartered in Chicago and Barrett has served in her position there for just under two years after teaching at Notre Dame for two decades.
Barrett was a finalist for the appointment to fill the last opening on the Court. She is a staunch conservative and pro-life judge who once clerked for Justice Scalia. In 2018, she was widely considered to be a bigger threat to Roe v. Wade than Brett Kavanaugh.
Last year, Trump said of Barrett to Jonathan Swann of Axios, “I’m saving her for Ginsburg.”
In the other corner is Barbara Lagoa, who is currently a justice on Florida’s Supreme Court. Lagoa is a Cuban-American, born in Miami, who graduated from Columbia Law School and was appointed to Florida’s Third District Court of Appeal by Jeb Bush in 2006 and the State Supreme Court by Ron DeSantis in 2019.
There are pros and cons for either choice. Amy Coney Barrett has been more closely vetted than Lagoa, which is both a blessing and a curse. Her anti-abortion beliefs are well-known and would be a lightning rod for Democrats and pro-choice Republicans.
Barrett’s short judicial history leaves few opinions for researchers to comb through as they seek to understand her judicial philosophy. One controversial opinion that will come up a lot in the next few weeks was Barrett’s ruling in 2019 that Purdue University’s handling of a sexual assault allegation may have discriminated against the accused man.
On the other hand, Lagoa has a longer history on the bench but no experience in the federal judiciary at all. She has ruled against voting rights for felons and generally been pro-business in her decisions per the Washington Post. One of her most controversial decisions was her ruling that Gov. DeSantis’s firing of Broward County Sheriff Scott Israel for incompetence following the Parkland, Florida school shooting.
With respect to abortion, Lagoa, a Catholic, is generally considered pro-life. However, she did respond to a question from Senator Feinstein last year by writing that Roe was “binding precedent of the Supreme Court and I
would faithfully follow it as I would follow all precedent of the Supreme Court.” She also responded that Roe was “settled law.”
Florida Republicans say that picking Lagoa could win the state for Trump even though Biden has consistently led in polling of the Sunshine State. Even if Trump does pull out a win in Florida, he would still lose the election if he can’t turn things around in other battleground states such as Arizona, Michigan, Pennsylvania, and Wisconsin where polling also shows him losing to Joe Biden.
Either woman would likely be a good pick for conservatives and constitutionalists, but it remains to be seen whether the additional conservative seat on the Court would be worth the collateral damage that confirming Mr. Trump’s pick could cause. Many Democrats, still smarting over the Senate’s failure to act on Merrick Garland, would like to see President Biden make two appointments off the bat by expanding the Court to 11 justices. This would almost certainly require the elimination of the filibuster and could set of a judicial arms race in which both sides expanded the Court whenever they held the White House and the Senate.
The Supreme Court fight might also cost Republicans Senate seats that could be held otherwise. A new Reuters poll found that 62 percent of adults favored allowing the winner of the election to make the appointment. Only 23 percent disagreed, which indicates that even a large number of Republicans want to let the voters decide the fate of the seat.
Donald Trump has typically performed poorly with women voters. A recent poll from Lake Research Partners and Emerson College Polling found that women favored Biden by 11 points, fueling an 18-point gender gap. Republicans hope that the appointment of a female judge will help make up some of that deficit. The net result may be negative, however, when the effect of going against the will of the voters in filling the seat is considered.
The outcome of a confirmation vote is still in doubt at this point. Republican Senators Susan Collins (Maine) and Lisa Murkowski (Alaska) have said that the Senate should not vote on Mr. Trump’s nominee before the election. The assumption is that this means they would not support a Trump nominee at this time. With 53 Republican votes in the Senate and Vice President Mike Pence as the tie-breaker, Republicans can only afford to lose one more senator.
The confirmation battle is still in its early stages. There is much that we don’t know, including who the nominee will be. One thing is certain, however. That is that the process will be contentious no matter who President Trump picks.
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