SCOTUS Showdown: A Case for Nominating Barbara Lagoa

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Posted: Sep 21, 2020 1:05 PM
SCOTUS Showdown: A Case for Nominating Barbara Lagoa

Source: AP Photo/Wilfredo Lee

President Trump will select a Supreme Court nominee to fill the vacancy created by the death of Justice Ruth Bader Ginsburg within a matter of days. We know that it will be a woman. And based on multiple reports, the top two potential finalists are Judge Amy Coney Barrett of the Seventh Circuit, and Judge Barbara Lagoa of the Eleventh Circuit. A law professor at Notre Dame, Barrett was confirmed 55-43 (nearly exactly along party lines) to her current post in the fall of 2017, following a contentious process. To be clear, I believe Barrett is a brilliant and capable jurist and would be thrilled if President Trump picks her. She's young (48), smart, and rock solid.  She is the frontrunner for good reason.  That being said, it's simply a reality that this nomination will be the subject of a pitched battle no matter who is named.  And against that backdrop, I am coming around to the view that Judge Lagoa might be the more strategically savvy choice under the present circumstances -- and should at least get a very serious look for the top spot on the list.  Consider:

(1) Lagoa's credentials are strong. Like Justice Ginsburg, she's a graduate of Columbia University's law school. She began her career on the bench as a lower court judge in Florida starting in 2006 (appointed by Gov. Jeb Bush) after serving as an Assistant US Attorney. She was elevated to the Florida Supreme Court by Gov. Ron DeSantis (who takes the issue of the courts very seriously) in January 2019, serving in that capacity for most of the year, until she was plucked from the state bench by Trump. The president nominated her for the Eleventh Circuit Court of Appeals. Her resume practically screams "well qualified" -- which is how she was unanimously rated by the left-leaning American Bar Association.

(2) Her personal story is also compelling, which is -- like it or not -- a relevant factor in an era of identity-focused politics. Lagoa is the daughter of Cuban-Americans who fled their homeland during the Communist revolution. She is young (she'll turn 53 the day before the November election), the mother of three daughters, and is said to have a vivacious personality.  If confirmed, this "wise Latina" would be the second-ever Hispanic member of the Supreme Court and only the fifth woman (the latter would also be true of Barrett).  Democrats are likely to be extremely aggressive in opposing this nominee (just look at their outrageous conduct during the Kavanaugh nomination), but the optics of beating up on a Latina would be less than ideal -- especially at a moment when Democrats are anxiously watching President Trump over-perform among Latino voters in the polls.

(3) Did I mention she's a Floridian? I've heard that state is a pretty important one.

(4) Chuck Schumer famously once said, "I always use the word 'extreme'" to discredit conservative ideas or nominees. Democrats will undoubtedly play that card against whomever Trump taps for this seat, but their go-to moniker would ring especially hollow if deployed against Lagoa. Why? She was overwhelmingly confirmed to the Eleventh Circuit Court of Appeals late last year. The final tally was 80-15 in favor. Senate Democrats voted to confirm her by nearly a two-to-one margin. The following Democratic members of the judiciary committee supported her confirmation: Richard Blumenthal (D-CT), Chris Coons (D-DE), Dick Durbin (D-IL), Dianne Feinstein (D-CA), Pat Leahy (D-VT), and Sheldon Whitehouse (D-RI). That's right, the four most senior Democrats on the committee voted Yea, as did Hillary Clinton's 2016 running mate. The only Democratic member of the committee who voted against her was Mazie Hirono (several others who were busy running for president did not vote). Also, every GOP senator voted in the affirmative, including Collins and Murkowski. Democrats will stomp their feet and say "but the Supreme Court is different!" Fine. But it's awfully hard to frame a nominee as dangerously radical and extreme when a large majority of your own party recently backed her confirmation to another powerful federal court.  This is a serious asset for Lagoa.  Her nomination could be framed as a more consensus and 'moderate' pick, which could raise the odds of a successful confirmation under difficult, high-pressure conditions.

(5) A conservative source who's long known Lagoa attests that her conservative credentials are strong, despite a relatively thin record on hot-button cases. Conservatives often fear David Souter-style betrayals, and for good reason. This source says there is "zero chance" Lagoa, whom the source likens to Clarence Thomas, is a risk to become an Anthony Kennedy, let alone a Souter.  She is said to have won the confidence of several very strong conservatives who are very familiar with her work.  But let's say for the sake of argument that she could end up becoming, say, a John Roberts, who disappoints conservatives, sometimes seriously, on occasion (I have no reason to believe this would be the case, and it merits a mention that Lagoa has been involved with the Federalist Society for years). That would still be an immense ideological upgrade from Justice Ginsburg. Which is to say, I'm less fixated than I typically would be on the demonstrable philosophical bona fides of this particular nominee at this particular moment in time. Republicans will need to thread a needle, given the timing of this vacancy. A huge strategic consideration, under these conditions, must be making opposition as difficult as possible. A Barbara Lagoa nomination could present some real optics landmines for Democrats, and it would align with the Trump campaign's aggressive courtship of voters of color at the Republicans' August convention. In other words, it would play to Trump's instincts and strategy.

I'd like to see more assurances about the underpinnings and consistency of her judicial philosophy (I've spoken to some plugged-in conservatives I trust who at least have questions about the depth of her commitment to conservative jurisprudence) -- and it's especially crucial that she's totally buttoned up from a vetting perspective. Yes, she just passed through a very recent confirmation process with flying colors (some of the conservative doubters ask why she received 80 votes, including the support of some extremely liberal Senators).  But SCOTUS is a different beast with different stakes. Just ask Justice Kavanaugh. But time is of the essence. If Lagoa is determined to be a sufficiently vetted and conservative jurist, I believe she may be an ideal candidate for the position, in light of all the emotionally-charged and politically-fraught dynamics at play.  And if not ideal, she's at least worthy of a very, very serious look.  I'll leave you with Lagoa's remarks upon being nominated for Florida's high court, which shed more light on her personal and family narrative: