The recent death of Supreme Court Justice Ruth Bader Ginsburg has created an opportunity for President Donald Trump to nominate another Supreme Court justice. President Trump has announced that he intends to announce a nominee by Friday or Saturday of this week. Senate Majority Leader Mitch McConnell (R-KY) has added that he intends to hold a floor vote this year on that nominee. The confirmation process promises to be a pitched battle. Until a new justice has been nominated and confirmed, the Court will consist of only eight justices (three Democratic appointees and five Republican appointees).
The confirmation of the President’s first two Supreme Court nominees was not uneventful. In 2017, President Trump nominated Neil Gorsuch to fill the vacancy created by the 2016 death of Justice Antonin Scalia. Senate Democrats—enraged at the refusal of Senate Republicans to hold a vote in 2016 on President Barack Obama’s nominee, Judge Merrick Garland—attempted to filibuster the nomination. In response, Leader McConnell and his Republican allies invoked the “nuclear option” by allowing filibusters of Supreme Court nominees to be broken by majority vote. Justice Gorsuch was confirmed, 54-45. In 2018, following the retirement of Justice Anthony Kennedy, President Trump nominated Brett Kavanaugh to the high court. After Kavanaugh was accused of having committed a sexual assault during his teenaged years (an accusation he denied), the nomination became embroiled in controversy. Justice Kavanaugh was eventually confirmed, 50-48.
The difference between the upcoming nomination and the Gorsuch and Kavanaugh nominations is this: President Trump appointed Justice Gorsuch and Justice Kavanaugh to fill vacancies created by the death or retirement of other Republican appointees. Now, however, the President will be appointing someone to replace a liberal Democratic appointee. This means that the upcoming nominee could, if confirmed, create a much greater ideological shift on the Court than Justices Gorsuch and Kavanaugh did. Over the past several decades, the left has frequently relied on the Court to push agenda items that are too radical to enact through the legislative process. The possible replacement of a liberal icon like Justice Ginsburg with a justice who espouses a limited role for the federal courts and a strict, literal interpretation of the Constitution is nothing short of an existential threat to the left. Therefore, it is reasonable to expect that this year’s confirmation battle will make the Gorsuch and Kavanaugh confirmation battles look like walks in the park by comparison.
Who might the President appoint to fill the vacancy on the Court? Here is what we know. President Trump has released two lists of potential nominees. Furthermore, President Trump has already indicated that he intends to nominate a woman. Various female judges have been mentioned as potential nominees. Recently, media reports have focused on Judge Allison Jones Rushing of the Fourth Circuit Court of Appeals, Judge Barbara Lagoa of the Eleventh Circuit Court of Appeals and Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals. There is much speculation surrounding Judge Lagoa, a Cuban-American from Florida who boasts the support of Gov. Ron DeSantis and more than a decade of experience as a state court judge; Judge Lagoa’s supporters take the view that nominating her to the high court would help the President’s political fortunes in Florida in November. Furthermore, some assert that Judge Lagoa’s limited record on hot-button issues could make it easier for her to be confirmed.
At New Yorkers for Constitutional Freedoms, we respectfully urge President Trump to put aside political considerations and pick the best person for this very important job. Based on the information we have available, it is our belief that person is Judge Amy Coney Barrett. Before joining the Court of Appeals in 2017, Judge Barrett served as a professor at Notre Dame Law School. Her stances on some important issues are well-developed. Christian New Yorkers may recall that Barrett was criticized for her devout Catholicism by Sen. Dianne Feinstein (D-CA) during her confirmation hearings. In the past, Republican presidents have gotten the country into trouble by nominating Supreme Court justices based upon how easy it wouldbe to confirm them. Those justices typically end up being much further to the left than they were expected to be. One grievous result of this approach is the appointment of Justice Anthony Kennedy, who wrote the majority opinion in the same-sex “marriage” case known as Obergefell v. Hodges. In stating our support for Judge Barrett, NYCF is most emphatically not stating that we oppose Judge Rushing, Judge Lagoa, or any other potential nominee. While Judge Rushing and Judge Lagoa are impressive in many respects, neither judge has as much experienceon the federal bench as Judge Barrett has. We believe that this fact, among others, makes Judge Barrett the best person for the job.