As the nation grieves the death of women's rights champion Justice Ruth Bader Ginsburg, Donald Trump has vowed — in the teeth of public outcry — to choose her replacement. Trump is likely to choose a woman to fill Ginsburg's Supreme Court seat, but his two top picks for the vacancy, Judge Amy Coney Barrett and Judge Barbara Lagoa, are under fire for troubling judicial track records. (A third is Allison Jones Rushing, a conservative federal appeals judge in North Carolina.)
Barrett, of the U.S. Court of Appeals for the 7th Circuit, is a Catholic conservative and mentee of Antonin Scalia with a record of conservative rulings on cases ranging from abortion rights to gun control. Before her brief stint on the bench, she was a law professor for nearly 20 years at the University of Notre Dame.
Axios reported last year that Trump said of Barrett: "I'm saving her for Ginsburg."
She is, in many ways, the anti-Ginsburg. In a 2013 speech given at Notre Dame on abortion jurisprudence in America, Barrett stated her personal conviction that life begins at conception. While she noted it seemed unlikely that the court would overturn Roe v. Wade's "core protections," she appeared to express support for subsequent rulings restricting abortion access.
A rigid originalist like Scalia, Barrett has publicly disputed stare decisis — the principle that judges should rule based on precedent cases. Instead, Barrett has a history of focusing on the original intent of the text as opposed to treating the Constitution as a living, evolving document.
This leaves wide open the possibility of overturning Roe v. Wade. In a 2013 article in the Texas Law Review, Barrett listed a handful of cases she considered "superprecedents," or cases that no court should ever consider overturning. Among them was Brown v. Board of Education. Notable by its absence was Roe.
In 2015, Barrett signed a letter to Catholic bishops confirming her belief in the "value of human life from conception to natural death."
In her time on the bench, Barrett has ruled on two abortion-rights cases. The Washington Post reports that in one, the appeals court upheld a judicial bypass clause in Indiana parental consent laws, which states that parental consent is not required if the minor demonstrates that they have the emotional maturity to make the decision. Barrett dissented.
In the second instance, involving the case of a woman seeking abortion of a fetus with Down syndrome and a restrictive Indiana law prohibiting abortions performed for reasons of sex, race, or disability, three other Republican appointees noted that the Indiana law "clearly violate(d) well-established Supreme Court precedent."
Though not asked to rule on that particular aspect of the law, Barrett joined a dissent effectively calling the Roe precedent a "eugenics statute."
Barrett has also attempted to overturn a law prohibiting those convicted of felonies from owning guns and has made clear her opposition to the Affordable Care Act. She signed a public statement in 2012 opposing Obamacare's coverage of contraception at religious institutions as an "assault on religious liberty."
She also wrote an appellate decision last year that made it easier for students accused of sexual assault to dispute their university's handling of the case.
Lagoa, another top Trump pick, sits on the 11th U.S. Circuit Court of Appeals. Although Lagoa has more time on the bench than Barrett, she has an equally problematic record.
A member of the right-wing Federalist Society, many of whose members openly question the constitutionality of Roe v. Wade, she is also a protege of Florida Gov. Ron DeSantis, who has close ties to Trump.
Just last week, Lagoa ruled against individuals convicted of felonies being reinstated with voting rights after serving their time, a move that drew ire from Democrats because, as a justice on the Florida Supreme Court, Lagoa participated in the litigation of the original case on voting by those convicted of felonies. She had sworn under oath to recuse herself from cases in which she had previously participated.
One might reasonably question her promise to uphold the precedent of Roe contained in the answers she submitted to the Senate Judiciary Committee in 2019 for her confirmation to the federal bench as well.
Anti-abortion-rights and anti-LGBTQ-rights group the Florida Family Policy Council has called Lagoa an attorney with a "conservative judicial philosophy" who is "deeply committed to her faith."
Meanwhile, Rep. Matt Gaetz (R-FL) has described her as "very pro-life, reliably pro-life" and a "hardcore Catholic" whose "faith guides her perspective on life."
Daniel Goldberg, legal director of the progressive Alliance for Justice, told the Washington Post that he has "no doubt [Lagoa] will meet Donald Trump's litmus test" of supporting the overturn of Roe and the repeal of Obamacare.
One thing is clear: Both candidates are steeped in controversy and present a clear and present danger to both women's rights and health care access.
Published with permission of The American Independent Foundation.
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