Meet the Women Most Likely to Replace Ruth Bader Ginsburg
With the recent passing of Supreme Court Justice Ruth Bader Ginsburg, President Trump is now tasked with the constitutional duty of nominating her replacement. While certainly authoring some opinions that many conservatives across the nation will find disagreeable, Justice Ginsburg was a trailblazer for women in the legal profession. Therefore, it is quite appropriate that President Trump seems poised to nominate another qualified female jurist to fill her role on the nation’s highest court.
The announcement of this next nominee is expected to come this Saturday at the White House. Americans in all corners of the country are no doubt wondering who the next justice will be. By all indications, President Trump has narrowed his list down to a select set of names, drawing from his list of potential nominees. With the exception of the most devoted followers of constitutional case law, this will be the first time the American people hear many of these names.
So, without further ado, meet the eight women most likely to become the next Supreme Court Justice of the United States:
Amy Coney Barrett
Circuit Judge – Seventh Circuit Court of Appeals
Judge Barrett, a graduate of Notre Dame Law School, was nominated by President Trump to be a justice on the Seventh Circuit Court of Appeals in May 2017. Previously a professor at her alma mater, Barrett was confirmed in October of that year by a vote of 55 to 43, receiving unanimous GOP support, as well as votes from Sens. Joe Manchin (D-W.Va.), Joe Donnelly (D-Ind.), and Tim Kaine (D-Va.). Barrett became the first woman to ever occupy one of Indiana’s seats on the Seventh Circuit.
Barrett is perhaps most well-recognized for her exchange with Sen. Dianne Feinstein (D-Calif.), who accused Barrett of being too religious, saying, “The dogma lives loudly within you, and that is a concern.” Barrett is a staunch defender of religious liberty. For any senator, this should be considered a feature, not a bug.
Barrett describes herself as a “public meaning originalist,” meaning she believes the Constitution should be interpreted based on what the words meant at the time of ratification, not based on what they might be twisted to mean today. This school of legal thought was popularized by the late Justice Antonin Scalia, for whom Barrett once clerked. Succinctly, a judge must ask the question, “What would a reasonable person living at the time of ratification have understood these words to mean?"
The Yale Journal of Regulation found that Barrett would likely strike down the doctrine known as Chevron deference, which states courts should defer to the regulatory agencies’ interpretation of relevant statutes when there is any ambiguity. Barrett has authored pieces questioning how far many judges take judicial restraint and has argued jurists are far too hesitant to declare statutes unconstitutional these days.
Barrett stressed that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law,” and she pledged that her views on “any other question will have no bearing on the discharge of [her] duties as a judge.” Barrett was added to the list of potential nominees shortly after her circuit court appointment.
Circuit Judge – Eleventh Circuit Court of Appeals
Judge Lagoa, a graduate of Columbia Law School, was nominated by President Trump to the Eleventh Circuit Court of Appeals in September 2019. She assumed office in December after being confirmed by a vote of 80 to 15. Prior to that, she served on the Florida Third District Court of Appeals, having been appointed by then-Gov. Jeb Bush. Later, she received an appointment to the Florida Supreme Court by Gov. Ron DeSantis.
A year before her birth, Lagoa’s family fled Cuba for the United States. She’s said her family’s experience there led her to believe in the importance of the rule of law and that a judge should not let their personal preferences cloud their decision-making, as in Cuba, “the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death.”
Lagoa describes herself as an originalist. During her Senate hearing, she said, "I think it is important, when you’re looking at the Constitution, to see what the original public meaning or the understanding of that particular phrase meant, or the particular word.”
In answers given to the Senate Judiciary Committee, Lagoa indicated she would uphold precedent on administrative law cases, including the aforementioned Chevron deference. She said, “I am familiar with the Administrative Procedures Act and the Supreme Court precedent concerning administrative authority, including Auer v. Robbins, 519 U.S. 452 (1997) and Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If confirmed, I would fully and faithfully apply Supreme Court precedent on administrative law.”
Perhaps one of Lagoa’s most controversial and well-known decisions came when she upheld a Florida law that required incarcerated felons to pay fines and fees before regaining their right to vote. Many saw this as a form of poll tax, while others thought she should have recused herself, given that she was involved in the case during her previous tenure on the Florida Supreme Court.
Lagoa is also known for a decision that preempted minimum wage hikes in Florida localities, siding with business groups challenging a Miami Beach law change. Miami Beach had tried to raise its minimum wage to almost five dollars more than the state minimum wage.
Lagoa was added by President Trump to his list of potential Supreme Court nominees in the latest slew of additions, coming on September 9, 2020.
Allison Jones Rushing
Circuit Judge – Fourth Circuit Court of Appeals
Judge Rushing, a graduate of the Duke School of Law, was nominated by President Trump to the Fourth Circuit Court of Appeals in August 2019. She was confirmed in March 2019 by a 53 to 44 party line vote. Prior to her time on the Fourth Circuit, Rushing was a partner at Williams & Connolly, a prominent D.C. law firm. Rushing has also clerked for both Neil Gorsuch and Clarence Thomas.
Rushing has also worked for the Alliance Defending Freedom (ADF), which promotes religious liberty. A theme of many hearings for President Trump’s nominees, she was attacked by Senate Democrats for her defense of said liberty, with some even going so far as to call ADF a “hate group.”
During her prior work, Rushing submitted 47 briefs to the Supreme Court. Her most prominent case came as a result of her work on Ulbricht v. United States (2018), the infamous “Silk Road” case. In that case, Rushing strongly defended internet browsing privacy, relying strongly on the rights afforded by the Fourth and Sixth Amendments to the Constitution. She argued firmly against the seizure of web traffic without probable cause.
Rushing considers precedent very important in her judicial work and describes her philosophy thusly, “When applying constitutional provisions today, lower court judges should adhere to the meaning that the Supreme Court has assigned to those provisions. It is exceedingly rare for a lower court to consider a constitutional case for which there is no applicable Supreme Court precedent.”
Rushing was added to the list of potential Supreme Court nominees by President Trump on September 9, 2020. At 38 years old, she is the youngest potential nominee on the shortlist.
Circuit Judge – Sixth Circuit Court of Appeals
Judge Larsen, a graduate of Northwestern University Law, was nominated by President Trump to the Sixth Circuit Court of Appeals in May 2017. She was confirmed in November of that year by a 60 to 38 vote. Previously, she served as an Associate Justice on the Michigan Supreme Court. She has also clerked for Antonin Scalia, and served as Deputy Assistant Attorney General in the Bush administration.
Larsen describes her own judicial philosophy as such, “Judges should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” One can assume that judicial restraint would be a key characteristic of Larsen’s time on the Supreme Court were she to be nominated. She is also a strong proponent of separation of powers.
There is some question over whether Larsen is categorized as an originalist. The Yale Journal of Regulation says, “When it comes to interpreting the Constitution, Judge Larsen appears to follow Justice Scalia’s originalist approach.” However, a Mercer University study of President Trump’s original Supreme Court list showed her to be the least like the late Justice Scalia, for whom she had previously clerked.
Among her public positions, she has denied having any part in the Bush White House’s torture memos. She was also staunchly critical of the use of international law in Supreme Court decisions, more specifically the Lawrence v. Texas case. She also defended President Bush’s controversial use of signing statements, which contained constitutional objections to bills passed into law and potential modifications of existing statute.
Larsen is one of two candidates on this shortlist who were on the original list of Supreme Court candidates released by the Trump campaign in May of 2016.
Circuit Judge – Eleventh Circuit Court of Appeals
Judge Grant, a graduate of Stanford Law School, was nominated by President Trump to the Eleventh Circuit Court of Appeals in April 2018. In July of that year, she was confirmed by a 52 to 46 vote. Previously, she served as State Solicitor General for the state of Georgia from 2015 to 2017. In 2017, then-Gov. Nathan Deal appointed her to the Supreme Court of Georgia. Grant also clerked under Brett Kavanaugh while he was a judge on the D.C. Circuit Court of Appeals.
Grant believes precedent to be very important for the Supreme Court. She answered in her Judiciary Committee hearing, “Lower court judges should adhere to whatever meaning the United States Supreme Court has assigned to constitutional provisions when applying those provisions today. Indeed, it is rare for a circuit court to consider a true case of ‘first impression’ in the sense that there is no Supreme Court precedent that bears on the question at issue in the case.”
Grant is known in judicial circles for her outstanding writing ability. It is likely she would produce many landmark, quotable opinions were she to be appointed to the Supreme Court. One such decision parsed the application of the Fourth Amendment in a case where a colleague secretly filmed her boss. Grant agreed with the judgment in that case, but disagreed with the majority’s reasoning, which imposed the burdens of the Fourth Amendment on private parties, not adequately distinguishing between private individuals and government.
Grant was added to the list of potential Supreme Court nominees by President Trump in November 2017.
Circuit Judge – Ninth Circuit Court of Appeals
Judge Bade, a graduate of the Sandra Day O’Connor College of Law at Arizona State University, was appointed by President Trump to serve on the Ninth Circuit Court of Appeals in August of 2018. Her nomination was sent back to President Trump in January 2019. He then promptly re-nominated her and she was confirmed in February by a 78 to 21 vote. Previously, Bade served as a law clerk for Judge Edith H. Jones on the Fifth Circuit Court of Appeals.
Bade is notable for a number of decisions she’s made on the Ninth Circuit. In one particular case, she voted against expanding a defendant’s Miranda rights at the time of arrest. She also voted against limits on searches and seizures at border crossings.
This is perhaps the thing that sets Bade apart from the rest is that she is perhaps most notable for her decisions when it comes to immigration. She received a commendation from ICE for defending two of their offices in a lawsuit where border crossers crashed their car in the middle of a pursuit. She also dissented in Padilla v. ICE, arguing that a District Court could not require federal officials to grant bail hearings to detained asylum seekers.
Bade is also notable for being one of the few members on this list who is not a member of the conservative Federalist Society. Bade was added to the list of potential nominees by President Trump on September 9, 2020.
Circuit Judge – Tenth Circuit Court of Appeals
Judge Eid, a graduate of the University of Chicago Law School, was nominated by President Trump to the Tenth Circuit Court of Appeals in June 2017, to fill the seat left vacant by Neil Gorsuch. She was confirmed 56 to 41 by the Senate in November of that year. Previously, she served as Solicitor General for Colorado from 2005 to 2006 and then as a judge on the Colorado Supreme Court until her nomination to the Circuit Court. She also clerked for Supreme Court Justice Clarence Thomas.
Eid has been described as a textualist by those who know her record best. According to Chris Murray, a shareholder at the Denver firm Brownstein Hyatt Farber Schreck, “She’s certainly one of those where, if she likes the law or doesn’t like the law, it doesn’t matter to her. What matters to her is, can she figure out what it says?”
Eid also supported school choice while on the bench. She dissented in a 2015 opinion arguing that school vouchers should be able to be used by parents toward religious schools. She argued the court’s ruling was too broad in interpreting the Constitution’s prohibition on funding for religious schooling.
Controversially, Eid is known also for a decision in which she upheld the 84 year prison sentence for a 15 year-old murderer, arguing that it does not conflict with the Eighth Amendment’s prohibition on life sentences for minor offenders.
Eid was one of the original names on then-candidate Trump’s original list of potential Supreme Court appointees that was released in May of 2016.
Deputy White House Counsel
Todd, a graduate of Harvard Law School, is the only member of this shortlist who has no judicial experience. During her education, she was editor of Harvard Law Review. She served as a partner at Wiley Rein, a prominent D.C. law firm before entering government work in 2009. She has also clerked for Supreme Court Justice Clarence Thomas. Todd currently serves as the Deputy Counsel to the President and advises him on judicial nominations.
By the fact that she has never had judicial experience, she has a very miniscule paper trail on judicial philosophy and opinion. However, those who know her describe her as very dedicated to her principles and to judicial originalism. According to Adam Morata, “I think the first person that I ever met, other than Justice Thomas, who I realized fully embodied that principle is Kate [Todd],” he said “I’ve never seen her back down on an issue of principle. I’ve never seen her compromise her principles.” He added, “On issues of right or wrong, or on issues of what the law is or isn’t, there is no moving her.”
She has publicly decried the excessive executive regulation of businesses, calling it “terrible” at a Federalist Society event. Her legal record has a decidedly pro-business trend and that is also reflected from her time at the U.S. Chamber Litigation Center.
Todd was added to the list of potential Supreme Court nominees on September 9, 2020 by President Trump.