Three women appeals court judges, all conservatives recently appointed to the bench, are among President Donald Trump’s leading candidates to replace the late Supreme Court Justice Ruth Bader Ginsburg, according to people familiar with the selection process.
Trump over the weekend said he would tap a woman to replace Ginsburg, a liberal lion, whose death Friday threw the final weeks of a divisive presidential campaign into further turmoil as the president and the Republican Senate majority leader, Mitch McConnell of Kentucky, pledged to fill the seat as soon as possible.
The three likely finalists have impressive legal credentials and compelling personal stories and are also certain to pull the high court to the right, perhaps for years, as the justices tackle some of society’s most contentious issues, including health care reform and racial inequality, legal experts said.
Two leading contenders for the nomination, officials said, are Amy Coney Barrett — a 48-year-old former professor at Notre Dame Law School and a darling of the conservative legal establishment, who now serves on the 7th Circuit Court of Appeals — and Barbara Lagoa, 52, a former federal prosecutor who was the first Cuban American to serve on the state Supreme Court in Florida and now sits on the 11th Circuit. Also in the mix is Joan Larsen, a 51-year-old former state judge in the battleground state of Michigan, now on the 6th Circuit.
Trump specifically mentioned Barrett and Lagoa in a telephone call with McConnell not long after Ginsburg’s death, according to a person familiar with the conversation who was not authorized to be quoted by name.
The choice could be made public later this week, but whether the Senate would try to act on the nomination before the Nov. 3 election remains uncertain, the person added.
Some Trump advisers have pushed Lagoa in the belief that nominating her could help the president with Cuban American voters in Florida, a key swing state in the election where polls have shown a tight race between Trump and Democratic candidate Joe Biden.
But Lagoa’s tenure in senior judicial positions has been short — potentially a drawback for a nominee. Florida Gov. Ron DeSantis appointed her to the state’s high court in January 2019, and less than a year later, Trump picked her for the 11th Circuit, which has jurisdiction over federal cases in Florida, Alabama and Georgia. She has served on that court since December.
Asked Saturday about Lagoa, Trump said she was “an extraordinary person. I’ve heard incredible things about her.” But, he added, “I don’t know her. She’s Hispanic and highly respected.”
Trump does know Barrett and has been impressed with her, which appears to give her the edge, people familiar with the president’s thinking said.
Barrett was a finalist in 2018 to fill Anthony Kennedy’s seat, which ultimately went to Brett Kavanaugh. Because she already has been vetted, the White House could move quickly to nominate her without having to worry about unpleasant surprises that might derail a confirmation — although Trump has been known to disregard such cautions with picks for other jobs.
Barrett grew up in New Orleans and graduated at the top of her class in 1997 from Notre Dame Law School, where she became a professor. Trump named her in 2017 to the 7th Circuit, which has jurisdiction over federal cases in Indiana, Illinois and Wisconsin.
Like the others, Barrett checks most of Trump’s most important boxes. She is young and would likely serve for decades (Supreme Court justices have lifetime appointments), and she is a reliable conservative, backed by the Federalist Society, which has served as a proving ground for Republican judicial nominees. She clerked for former Supreme Court Justice Antonin Scalia, a legal hero on the right. In her legal writing and three years on the appeals court, Barrett has provided hints that she would rule with the most conservative justices on disputes over civil rights, voting rights, free speech and separation of church and state.
She has also expressed willingness to overturn precedents that she believes are not in line with the Constitution. Because of that, Barrett is seen by conservative supporters and liberal opponents as a linchpin vote to jettison the 1973 landmark Roe vs. Wade ruling.
Following precedent “is not a hard-and-fast rule,” Barrett wrote in a 2013 law review article. “I tend to agree with those who say that a justice’s duty is to the Constitution, and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.”
Barrett has another intangible quality that would likely appeal to Trump: She is good in the media. Also, she has five biological children and two adopted from Haiti — a tableau that could appeal to a president who is always conscious of visual images.
When senators grilled her during a 2017 hearing, Barrett calmly deflected their questions and pushed back on attacks on her record, even when Democrats probed her about her religion.
Sen. Dianne Feinstein of California, the ranking Democrat on the panel, pressed Barrett at the hearing about how her Catholic faith might affect her ability to be a fair judge.
“Why is it that so many of us on this side have this very uncomfortable feeling that, you know, dogma and law are two different things?” Feinstein asked at the 2017 hearing. “And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.”
Barrett replied that she “would faithfully apply all Supreme Court precedent” as an appellate judge. She added later that she would “never impose my own personal convictions on the law.”
Timothy Johnson, a professor at the University of Minnesota Law School, noted that such responses might make Barrett a top contender: “This is absolutely someone President Trump would love, because she is willing to push back on the left.”