A while back, I wrote an essay suggesting that Justice Ruth Bader Ginsburg should make a deal with President Trump: retire in exchange for a say (some say—but only some) in whom the president would nominate to replace her, with that someone being a nominee other than Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals.
Well, Justice Ginsburg didn’t listen to me, and now any hope she may have had of influencing Trump’s choice is gone.
Perhaps she neglected to read my piece. Perhaps, back in 2018 or 2019, she thought she would outlast Trump (and, for all we know, she came damn close— who knows how the election will turn out?). Perhaps her vanity got the better of her. In any event, here we are.
As I write this (one day after the news landed with the force of Hurricane Katrina, sending the Left into paroxysms of petrified panic, helpless rage, and impotent fury), it is a given that Trump will nominate somebody.
But that was always a given. Considering the Democrats’ howls of outrage about not waiting to fill the vacancy until after the election, it would behoove Trump to move rapidly and create “facts on the ground”—i.e., to announce the nominee, whoever it might be, Monday or Tuesday at the latest. This is no time to dilly-dally. We also know that Senate Majority Leader Mitch McConnell intends to hold a vote (we don’t know when—before or after November 3) and that at least Senate Judiciary Committee Chairman Lindsay Graham (R-S.C.) is on board.
Chuck Grassley (R-Iowa), the former chairman of the Judiciary Committee, is also presumably on board. Lisa Murkowski (“R”-Alaska)—we assume—is not on board. Susan Collins (R-Maine) is not on board with the idea of the vote, but how she would actually vote is anyone’s guess.
Senator Mitt Romney (R-Utah) remains a wild card. Romney is a small man, unworthy of the trust placed in him by Utah voters (and, eight years ago, by the rest of us). He is no doubt itching to piss on Trump’s parade, even if it means a loss of a Supreme Court seat, perhaps forever. Does he care about being remembered as a quisling by all Republicans, possibly forever? Who can say? It will require a virtuoso-like performance by McConnell to keep Romney marching to the same drumbeat.
But getting back to the most important question: Who?
There are two names that have been floated previously, and are still in the running: Judge Britt Grant of the 11th Circuit and Judge Amy Coney Barrett. The other earlier names can be, for all practical purposes, ignored.
The White House released 20 new names on September 9. Of those, we can immediately cross out all the men. It is impossible to imagine that Trump would nominate a man under these circumstances. And, in fact, the president announced Saturday night it will be a woman.
Similarly, we can forget the three senators on the list. Trump needs them in the Senate, and there is no margin for error. (And, of course, there is the fact that they are all men.)
Separate from any purely judicial and ideological considerations, Barbara Lagoa’s nomination has clear political benefits for Trump.
Looking at the remaining names, there are two district court judges: Martha Pacold of the Northern District of Illinois and Sarah Pitlyk of the Eastern District of Missouri. Both have been on the bench for about a year, and both seem to be very unlikely choices. It would be unusual to elevate a judge from the district court directly to the Supreme Court (not unheard of, but certainly unusual), and certainly unusual to elevate someone with so little judicial experience. My guess is they are on the list to make it look like lots of women are under consideration, but nobody seriously considers them to be viable contenders.
Kate Todd, also on the list, is deputy assistant to the president and deputy counsel to the president. While her biography is generally impressive, and in more normal times she might be a serious contender, I find it difficult to imagine her as a Supreme Court nominee. A district court judgeship, certainly. An appellate court judgeship, by all means. But the highest court in the land? Conservatives want a solid paper trail that proves someone’s conservative bona fides, and most of Todd’s paper trail is in representing others, rather than expressing her own views. She may be a good lawyer and a solid conservative, but . . . no. Not this time, and not for this vacancy.
Two appellate judges deserve a closer look.
Allison Jones Rushing of the 4th Circuit might be a good pick, except for two problems: she has only been on the bench for about a year, and she is on the young side. Thirty-eight might be an age when someone could be elevated to the Supreme Court in the 19th century, but today? Her youth and inexperience would give Democrats yet another weapon to wield against her and against the whole confirmation process. So as tempting as it might be to nominate Rushing, with the hope that she’ll be writing conservative opinions on the Supreme Court for the next 50 years, I don’t see it.
Bridget Shelton Bade of the 9th Circuit is 54—probably at the other outer edge of what Trump would want in a nominee’s age. Her problem is that she’s only been an appellate judge since April 2019. She was a magistrate judge for seven years before that, but magistrate judges do not handle the kinds of constitutional law issues that conservatives care about, they mostly deal with discovery disputes in litigations. Her paper trail—the one relevant to conservatives, at least—is a bit thin. There is also the fact that she is from the 9th Circuit, and that fact alone is enough to make conservatives squirm a bit. Judge Bade is based in Phoenix, but still . . . It’s the 9th Circuit. In other words: no.
That leaves only one name, out of 20: Barbara Lagoa of the 11th Circuit.
Lagoa’s federal judicial experience is also on the thin side—only about a year. Before that, however, she was a justice on the Florida Supreme Court and a state appellate judge for 13 years before that. Inexperienced, she is not.
And so, we have, in reality, three contenders: Amy Coney Barrett, Britt Grant, and Barbara Lagoa.
Of the three, in the abstract, Barrett is probably what conservatives would consider the gold standard: 48, three years of appellate judicial experience, rock-solid conservative bona fides, devoutly Catholic, unquestionably pro-life. She also brings a lot to the table in terms of motivating Republican voters, though it is unknowable at this point if she would also motivate Democratic voters more than Grant or Lagoa.
Except there is one problem. Right now, today, with six weeks to go before the election, Barrett would probably fall one or two votes short in the Senate. It is unfair, but politics is the art of the possible and this is politics in its purest, rawest, most brutal form.
So if I were Trump, that would leave me with selecting between Grant and Lagoa. For conservatives, the choice is between getting something less than 100 percent of the gold standard (i.e., Grant or Lagoa), and—quite possibly—zero. This is no time to insist on purity. We must accept 80 percent of the gold standard over a very real possibility of nothing.
Grant has been on the appellate bench for two years, and before that she served on the Georgia Supreme Court for a year and a half. In other words, she has sufficient judicial experience, though not a wealth of it. She is 42—10 years younger than Lagoa, which would normally be a significant point in her favor. It is, however, the only point in her favor over Lagoa that I can see. She is a solid conservative, though I have not heard her described in the same glowing terms as Barrett. Nonetheless, Republicans certainly would have no problems getting behind her nomination.
In ordinary times, Grant would be a good choice—and she might yet be one, if and when Justice Stephen Breyer, who is 82 and no spring chicken, retires in Trump’s second term.
But these aren’t ordinary times.
Which brings us back to Barbara Lagoa. Separate from any purely judicial and ideological considerations, her nomination has clear political benefits for Trump. She is Cuban-American, from a state where the Latino vote is critical. She is the daughter of Cuban refugees, which makes for a compelling life story. She helps lock down Florida. Her Latino background might even marginally help Trump elsewhere. She is 52 (almost 53)—young enough to serve for another 30-35 years. She has also been vetted over and over. What are the odds that Democrats will unearth that a 52-year-old mother of three girls is a secret member of a satanic sex cult?
Opposing Lagoa would put “pro-women” identity politics-obsessed Democrats in a bind. They will be rabidly and uncompromisingly attacking a very accomplished, highly qualified Latina woman for the sole reason that she was nominated by Trump. I also believe that any polls today showing that voters prefer Biden over Trump to nominate the next justice are little more than piffle over abstractions.
Once there is a specific nominee—a highly qualified one—who checks off the right demographic boxes, Democratic opposition will seem like unprincipled opportunism and rank hypocrisy. How believable will Representative Alexandria Ocasio-Cortez’s (D-N.Y.) or Senator Chuck Schumer’s (D-N.Y.) hysterics against a Cuban-American woman sound?
Nor can the Democrats effectively attack her as some sort of anti-woman right-wing radical. Such attacks would simply lack credibility—and Lagoa can easily respond to them by calmly reminding people that she is a woman with three teenage daughters, and it would be ridiculous to accuse her of not caring about her own daughters (and leave it at that).
Attacking Lagoa might motivate the progressive hard Left, but for most normal people it would make the Democrats look sleazy. Wavering Republican senators (like Collins and possibly Murkowski) would find it easier, in the end, to vote “yes.” Even Romney, that aspiring quisling, might be too embarrassed to vote “no.” When the fate of the Supreme Court seat hangs in the balance, and the vote is a nail-biter, you need every advantage, however slight—and Barbara Lagoa is ahead of Grant here.
If Lagoa’s confirmation hearings are held over Zoom, Democrats won’t even have a good place to gather for their hysterical protests. Such hearings will get fairly boring to watch fairly quickly, for most people. There is simply not as much drama in a Zoom conference as there is in a live Senate hearing. Writing angry tweets in attempts to whip up public discontent just doesn’t have the same impact. On the other hand, after demanding perpetual COVID-19 lockdowns, under what theory can Democrats argue with a straight face that in-person hearings are absolutely necessary?
Events are moving fast, and new information is dribbling out hourly. By Tuesday, all this tea leaf reading may be dust in the wind.
Trump could surprise us with Barrett, or Grant, or even Kate Todd. But if I were a betting man, I’d put my money on Barbara Lagoa.