Getting the Politics Wrong on Supreme Court Nominees

Several outlets identify 11th U.S. Circuit Court Judge Barbara Lagoa as a leading contender to replace the late Ruth Bader Ginsburg on the U.S. Supreme Court. President Trump has described her as “highly thought of . . . I don’t know her but I hear she’s outstanding.”

While her sparse record as a federal judge indicates good legal reasoning and writing skills, why in the world is she being considered for the nation’s highest court? The rest of the president’s statement offers a clue: “I’m getting a lot of phone calls from a lot of people.”

During her 10 months on the federal bench, Judge Lagoa has penned 11 opinions, only three of which are even formally “published,” meaning the other eight have no precedential legal weight in future cases. More than half of her opinions are in routine areas of criminal law, and the others mainly involve questions of state law in cases that happen to be filed in federal court. Her previous 11 months on the Florida Supreme Court yielded only one authored opinion—one confirming that Governor Ron DeSantis had properly invoked his authority under the Florida constitution to suspend the Broward County Sheriff from his duties.

None of her 11th Circuit or Florida Supreme Court opinions deal with any of the legal issues of interest to conservatives: nothing on administrative state questions, no property rights or environmental cases, no First Amendment cases, no federal constitutional issues at all, nothing whatsoever touching on social issues such as abortion or marriage. 

Nothing in her 11th Circuit or Florida Supreme Court work offers any clue of how she would approach any of the questions that make the Supreme Court the ultimate branch of government for conservatives today.

None of this is to say she is a bad judge, and certainly not to impugn her character or her exemplary accomplishments in life. As an attorney reading her opinions, I am confident she would give my clients a fair hearing and a competent decision in the ordinary procedural questions, criminal cases, and contract disputes that occupy most judges’ attention. Her work to date is actually rather bland by comparison to many on President Trump’s Supreme Court short list.

With her name appearing in numerous articles and conversations alongside Amy Coney Barrett as a leading contender, there is nothing in Lagoa’s 11th Circuit or Florida Supreme Court writing to justify her inclusion in those conversations.

Conservatives are eager to have a Supreme Court justice who will transform the court even more than Clarence Thomas did when he was confirmed to succeed Thurgood Marshall three decades ago. We want a justice who is reasonably likely to be a decisive vote in efforts to reign in the administrative state, give a reasonable rather than ideological reading to congressional statutes, and restore the vitality of important safeguards in the Bill of Rights. 

Not least among those rights, there is that little thing about not being deprived of life, liberty, or property without due process of law. It would be generous to even call Lagoa’s federal judicial record on any of these issues “sparse.” There simply isn’t one.

Barrett’s work as a law professor and over the past three years as a federal judge on the 7th Circuit (authoring nearly 80 opinions on a wide range of important topics) gives plenty of reason for confidence that she would fulfill that role without morphing into a Souter or Kennedy, and fair promise that she would emerge as an intellectual leader on the Court in the mold of Justice Scalia, for whom she clerked. 

One need not think badly of Barbara Lagoa to conclude that nominating her would invoke the specter of prior unforced Republican errors such as the addition of David Souter to the court by George H. W. Bush, and his son’s failed effort to nominate his friend and White House counsel Harriet Miers.

So why is a federal judge with no record of distinction on any issue important to conservatives so close to the nomination? As President Trump said, “I’m getting a lot of calls from a lot of people.” Those people, reported to include Florida’s Republican governor and both Republican U.S. senators, want their candidate to get the gig. Because gigs, and not the good of the nation, are what the average politician is about.

Meanwhile, Republican political operatives are out in force proclaiming that Lagoa would be easier to confirm than Barrett, and would win Florida for Trump. I have written previously that the claim Lagoa would help Trump with “winning Florida” lacks any evidence of having been a successful tactic in any other presidential campaign. But the argument that Lagoa will be easier to confirm sounds like a talking point written to sell a bad idea.

The nominee on the president’s shortlist who is the easiest to confirm to this particular vacancy is by definition the wrong nominee, and the GOP consultant class knows that. They are arguing for the president to trade in his one clear opportunity to transform the Supreme Court for a generation, in exchange for gratifying a group of Florida politicians who want to notch one in the usual Washington game of spoils division.

President Trump needs to deliver for conservatives on this opportunity now, and tell the phone callers for Lagoa that this has to be America’s time, not theirs.

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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.

Photo: Mike Kline/Getty Images

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