Conservatism, Inc. Informs Us That Opposition to Lagoa Is Racist

For an alarming example of institutional conservatism’s response to the emerging conflict on the Right over judicial nominations, look no further than John Fund’s recent column arguing for Barbara Lagoa to get the nod over Amy Coney Barrett as the replacement for the late Justice Ruth Bader Ginsburg.

Fund’s piece is based on the absurdly pandering claim that Lagoa would be easier to confirm because Democrats will be wary of attacking a Hispanic nominee as they rely on Hispanic votes. This is daft.

Fund omits that the Democrats’ savaging of Miguel Estrada inaugurated their use of procedural tactics to close the federal bench to good nominees. Estrada being Hispanic failed to tame Senator Chuck Schumer (D-N.Y.) then. Has anything happened since to make him feel any heat from Hispanic voters?

Fund’s claim is even weirder when you add the stakes in this nomination. The last vacancy in which an iconic liberal was replaced with a robust conservative followed Thurgood Marshall’s retirement in 1991. A few of the older kids might remember the dignified hearings over which Joe Biden presided on the nomination of one Clarence Thomas.

Is that the restraint into which Fund hopes Lagoa’s Cuban birth will shame Chuck Schumer?

John Fund is too experienced a political hand to forget the treatment Democrats gave Thomas and Estrada. So what is he doing? I have no brief against Judge Lagoa, but Fund’s arguments for her can only be read as capitulation in the face of victory. And the only counter he makes to critics on the Right is that they are—you guessed it—racists.

What are his talking points in her favor? And how persuasive are they? Any of them taken alone suggests unfamiliarity with the recent history of Republican Supreme Court nominations. But taken together, his piece amounts to a purposeful call to stack arms.

First, he argues that Lagoa’s nomination to the 11th Circuit Court of Appeals last year had the support of Senator Dianne Feinstein (D-Planned Parenthood), whose defense of Roe v. Wade in confirmation hearing is as ill-informed as it is intransigent. So, if you want to make a transformative appointment based on Feinstein’s opinion, do you want the judge she easily voted for, or the one to whom she famously glowered “the dogma lives loudly in you.” Fund wants us to prefer the one Feinstein supported over the one Feinstein could only bigotedly denounce.

Fund also says Lagoa is the choice because her hearings were peaceful, while Barrett’s were only mostly peaceful. This is an attempted con, and you are the mark if you believe it. As if Neil Gorsuch and Brett Kavanaugh were treated well as Supreme Court nominees because their confirmation to the circuit courts were nonevents.

John Fund is serious about grasping generational defeat from the jaws of unlooked-for victory: if you are a right-winger who is not sold on Barbara Lagoa, you just might be a racist.

Nothing about what is to come will be peaceful. Any competent political analyst would acknowledge that what the Democrats are preparing right now for whoever is nominated will be the most astonishing “shite show” in the history of the U.S. Senate. And yes, I include the caning of Charles Sumner on the Senate floor.

This confirmation will mark the most significant shift in the Supreme Court since Thomas was confirmed in 1991. And Thomas joining the court did not approach creating a Kennedy/O’Conner/Souter-proof majority. This nomination could do exactly that: a five-member squad that won’t need to deal with Chief Justice Roberts if they don’t want to. The entire Left will consider this worthy, in fact demanding of, their last desperate throw. They will leave no weapon unused.

Against the logic of this, does Fund think that the Left will stand down? It is incompetent to even imagine they would. Going into this den, why would you prefer a nominee who had an easy confirmation over one who has already stared down Feinstein and her unhinged colleagues and acquitted herself with mastery?

If this is not enough Expert Professional Conservatism, Fund informs us that Lagoa’s nomination would win Florida for Trump. Aside from the slight problem that a “go it safe, don’t anger the Left” nomination would certainly lose Trump the Great Lakes states and Mitch McConnell the Senate, that might be totally cool.

If it were even true. Home state Supreme Court nominations have no demonstrated track record of delivering that state for a president. Eisenhower appointed liberal William Brennen to the Supreme Court in 1956 ostensibly to woo New England liberals to the cause of his reelection. Eisenhower swept New England in both of his elections, along with most of the rest of the country, so there is no proof Brennen got him anything electorally. But Brennen stayed on the Court until 1990, contributing heavily to its leftward drift until he was replaced by David Souter, whom we were assured would be a “home run for conservatives.” Talk about being tired of winning.

That brings us to the reason conservatives might be skeptical of Lagoa, especially in comparison to Barrett. Where Barrett has such a solid paper trail, suggesting to almost all observers that she would vote to overturn Roe, Lagoa has been a judge since 2006 with little to indicate what she thinks of such things. Fund expertly assures us that her short time as a federal judge (following several years on the Florida bench) and lack of paper trail on constitutional questions should be no more a cause for concern on the Right than it was for, that’s right, David Souter.

At this point, I am wondering if Fund is trying to break into the sort of satire best left to the pros at the Babylon Bee and CNN.

But Fund is serious about grasping generational defeat from the jaws of unlooked-for victory: if you are a right-winger who is not sold on Lagoa, you just might be a racist. Good thing we have the expert professional conservative guidance to know that wanting the better choice for America’s future is evidence, as it always is, of racism.

With instructions like this, one can be forgiven for doubting that institutional conservatism wants to win.

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About Scot S. Grant

Scot S. Grant is the pseudonym of a constitutional litigator living in California, where he has decided to fight it out instead of fleeing.

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