Barrett, Rushing, Lagoa: Whom will Trump put on the Supreme Court?
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September 23, 2020 (LifeSiteNews) – With President Donald Trump slated to announce his nominee to replace the late Supreme Court Justice Ruth Bader Ginsburg this weekend, all eyes are currently on three women widely believed to be finalists for the vacancy, searching for clues as to whether they would be true conservative originalists, or betray conservatives as so many Republican appointees have done in the past.
A left-wing jurist appointed by former President Bill Clinton, Ginsburg passed away Friday at age 87 following a battle with pancreatic cancer. Trump, Senate Majority Leader Mitch McConnell, and a narrow majority of Senate Republicans have confirmed they will move to fill her seat before the November election.
Trump has also confirmed that his choice for Ginsburg’s successor will be a woman, leading most to conclude the nominee will be either Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals (age 48); Judge Allison Jones Rushing of the Fourth Circuit Court of Appeals (age 38); or Judge Barbara Lagoa of the Eleventh Circuit Court of Appeals (age 52).
Amy Coney Barrett
Barrett is a former University of Notre Dame law professor and Catholic mother of seven who became famous when Sen. Dianne Feinstein (D-CA) interrogated her about her Catholic faith during her confirmation hearing for the Seventh Circuit in 2017. She is believed by many to be the most likely pick, as Axios reported last year that Trump privately said he was “saving her” to replace Ginsburg.
A former clerk for the late conservative stalwart Justice Antonin Scalia, Barrett is widely regarded as a pro-life originalist. She was a member of Notre Dame’s Faculty for Life group, signed a 2015 letter expressing “solidarity with our sisters in the developing world against what Pope Francis has described as ‘forms of ideological colonization which are out to destroy the family’”; and is reported to have signed another letter published by Becket Law criticizing the Obama administration’s contraception mandate.
Revolver News further notes that Barrett has taken the conservative and/or originalist stance in written positions on hot-button issues such as due process for sexual assault claims on college campuses, the right to bear arms, and immigration. Perhaps most encouragingly, Barrett has also written multiple articles critical of the stare decisis doctrine, which grants weight to past rulings’ status as precedent, regardless of whether they were rightly decided.
Despite her popularity among conservatives, some have also expressed doubts about her. Last year, conservative Catholic writer John Zmirak wrote that she was “not a safe pick” because of an article she wrote in law school with her then-professor John Garvey arguing that a Catholic judge would have to recuse herself when asked to impose the death penalty on someone.
While (as noted above) Barrett has presided over immigration cases without recusing herself (and has voted to uphold executions more than once), Zmirak argued that Barrett might reverse course should Catholic authorities such as Pope Francis move to make their left-wing views official Catholic doctrine.
Barrett addressed the article in her confirmation hearings for the Seventh Circuit, explaining that “I was very much the junior partner in our collaboration” and that it does not reflect “how I think about these questions today with…the benefit of 20 years of experience and also the ability to speak solely in my own voice...I cannot think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”
On Wednesday, Zmirak wrote that Barrett has “proved better than her word” on the Seventh Circuit, leading him to “withdraw my previous questions about her fitness.”
Others have raised concerns over Barrett joining a panel ruling that denied the Illinois Republican Party’s request for an emergency stay of the governor’s 50-person limit on religious gatherings. Attorney Robert Barnes takes this as evidence she’s an “authoritarian”; Barrett defenders such as National Review’s Ed Whelan argue the decision merely applied the legal criteria necessary for a stay.
Allison Jones Rushing
An evangelical attorney who could be on the court for as much as half a century given her relative youth, Rushing is a former intern of the socially conservative Alliance Defending Freedom (ADF) and has clerked for both then-Judge Neil Gorsuch and conservative stalwart Justice Clarence Thomas. She defended ADF against claims it was a “hate group” when they were raised by Democrats in March.
Having only been a judge since March 2019, Rushing’s paper trail on the issues is shorter than many contenders, though her policy views can be inferred to a degree from her association with ADF. In 2012 she was a volunteer legal advisor for Republican Mitt Romney’s presidential campaign, while in 2009 she volunteered for the Maryland House of Delegates campaign for Democrat Sam Arora.
In a 2005 article coauthored by ADF Senior Counsel Jordan Lorence, Rushing criticized lawsuits challenging the Ten Commandments on public property, writing that “granting anti-religious observers veto power to drive all religious references from the public square replaces a ‘sense of proportion and fit with uncompromising rigidity at a costly price to the values of the First Amendment.’”
Rushing has also criticized United States v. Windsor, the 2013 Supreme Court decision that gutted the federal Defense of Marriage Act (DOMA). “DOMA codified the definition of marriage that had prevailed throughout most of human history and, at the time of DOMA’s enactment, had been adopted by every State in the nation and every nation in the world, was evidence that the law did have a valid basis, or at least explained how lawmakers could enact such a law motivated by something other than hatred,” she said in 2013.
“Most interestingly, the dissenters observed that the majority could have decided the case on legal principles that would have accused DOMA’s supporters simply of making a legal error, which is an error that one could make in good faith. But instead, the majority chose [to] write the opinion in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.”
A Cuban and former member of the Florida Supreme Court, Lagoa’s appeal is rooted in large part on the theory that selecting her could help Trump win Florida. But several conservatives are wary that she may be unreliable, due at least in part to the fact that 26 Senate Democrats found her acceptable enough to confirm for her current position.
That said, she does have some conservative credentials. “Just last week, for example, she was one of the deciding votes that limited Florida Republicans’ incredibly ill-advised decision to allow a referendum on permitting felons to vote,” Revolver notes. “Thanks to her, thousands of Florida felons that haven’t even paid the fines they were ordered to as part of their sentences will not be voting against President Trump on November 3rd. She also recently joined in an opinion limiting illegal aliens’ ability to tie up the courts with appeals after they are given an order of removal.”
Notably, in 2000 Lagoa also worked pro bono on the legal team that fought the Clinton administration’s ultimately-successful efforts to deport then-child Elián González to Communist Cuba, a case widely believed to have spurred Floridians to choose President George W. Bush over Clinton’s vice president, Al Gore.
“Judge Lagoa is a committed originalist and textualist, as demonstrated by her 14-year record as an appellate judge and 400 written opinions,” Jesse Panuccio of the U.S. Justice Department told the Washington Free Beacon.
Other women Trump may nominate include Kate Todd and Martha Pacold, who both clerked for Justice Thomas.