The Trio of Trump Front-Runners for Ginsburg Supreme Court Seat

September 21, 2020by David Yaffe-Bellany and Josh Wingrove, Bloomberg News (TNS)
Amy Coney Barrett is a U.S. Circuit Judge of the United States Court of Appeals for the Seventh Circuit, who previously served as the Diane and M.O. Miller Research Chair of Law and Professor of Law at Notre Dame Law School. (University of Notre Dame/Zuma Press/TNS)

Since Justice Ruth Bader Ginsburg died Friday night, President Donald Trump has largely winnowed a list of dozens of potential replacements down to three front-runners: Appeals court judges Amy Coney Barrett, Barbara Lagoa and Amul Thapar.

Barrett, Lagoa and Thapar all appeared on a long list of possible high-court picks that Trump updated earlier this month. And Barrett and Thapar were among the nominees whom Trump considered before selecting Brett Kavanaugh for the court in 2018.

The three 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.

The president said Saturday he’s likely to select a woman for his third top court pick, and complimented Barrett and Lagoa.

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.

Senate Democrats argued that Barrett’s Catholic faith would sway her legal analysis, especially on issues like abortion. “Dogma lives loudly within you,” Sen. 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 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.

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 Lagoa has seen a quick ascent. Florida Gov. 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.

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 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.”

Like Lagoa, Thapar’s legal credentials may be bolstered by the inherently political timing of Trump’s appointment. He was born in Michigan and raised in Ohio, two battleground states. His status as a trailblazing South Asian justice comes also as Trump and Mike Pence run against Democrats Joe Biden and Kamala Harris, a Black woman who’s also of South Asian ancestry. He’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 Sen. 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.

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©2020 Bloomberg News

Distributed by Tribune Content Agency, LLC.

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