The Supreme Court nomination has suddenly become the number one issue in American politics and the presidential race, temporarily eclipsing even truly historic events such as the COVID pandemic and the struggle for racial justice. The replacement of one of the Court’s strongest progressive voices is a historic milestone, whoever her replacement will be and whatever her views.
Although we deeply respect what Justice Ruth Bader Ginsburg accomplished for all women of America, we also have to bear in mind that Justice Ginsburg’s reputation will regrettably forever be deeply contentious due to her anti-life jurisprudence. While Justice Ginsburg will remain an icon for millions of Americans, she will also remain a lightning rod akin to Chief Justice Roger Taney. What Taney’s Dred Scott decision was in his time, Roe and its jurisprudence of violence remain in our own time.
Abortion is understood for what it is by millions of Americans for its cruelty and violence. Justice Ginsburg sought to use sex discrimination law to impose an oppressive unlimited abortion regime across a land conceived in liberty. Abortion doesn’t contribute to women’s happiness, and abortion isn’t necessary for women to succeed. Hopefully the next Justice, and the new majority on the Court, will clean up the tragic mess of abortion law, and its negative impact on women and the nomination process, that Justice Ginsburg did so much to perpetuate.
Of course, a Supreme Court Justice’s views can make a great difference to the Supreme Court’s dynamics. It’s often said that each new Justice makes the Supreme Court a new and different Court. The Court is a collegial environment, but also at times a “Team of Rivals”. Nowhere is that fact more evident than in the area of abortion jurisprudence. The Court has before it a petition for an emergency order brought by the Justice Department, asking the Court to set aside a federal judge’s order striking down protections from the risks of chemical abortion that the Food and Drug Administration enacted twenty years ago. We don’t know whether the Supreme Court has voted on the emergency petition, but Justice Ginsburg’s passing will already have an impact. The Supreme Court ruled two years ago in Yovino v Rizzo that federal courts cannot count the vote of a judge who dies before the decision is issued. “Federal judges are appointed for life, not for eternity,” the Court poignantly reminded us. Thus, the Court’s decision on the emergency petition in the FDA case will be made by a vote of eight Justices, and the strongly pro-choice side of the Court – the so-called “Breyer bloc” of four concurring Justices in the recent June Medical Services decision – will have lost a key member. And the decision on the merits down the road – like similar decisions now before the Court or soon to be such as the “Protect Life” rule that resulted in Planned Parenthood dropping out of the federal Title X family planning program and the question of state de-funding of Planned Parenthood from the Medicaid program – will be made by Justice Ginsburg’s replacement. That there could be a sea change in the Supreme Court’s abortion jurisprudence is plain for all to see – and that’s the reason that the pro-abortion political forces have pulled out all the stops to prevent President Trump’s nominee from getting a vote in the Senate before January.
The Road to the Supreme Court
The President’s nomination will go first to the Senate Judiciary Committee, which must refer her nomination by a straight up-and-down vote to the full Senate with a positive or negative recommendation or “no recommendation.” The Judiciary Committee, chaired by Sen. Lindsey Graham (R-SC), will review documents related to the nominee’s career and her judicial decisions. Senate leadership has promised an expeditious hearing process, with Senate Majority Leader Mitch McConnell reportedly stating that he anticipates a three-day hearing beginning October 12, 2020, with a vote by the full Senate by the week of October 26th. That would enable the nominee to be seated on the Supreme Court shortly after the start of its new term, which begins on October 1, 2020.
The Short List
It is remarkable and a point of pride for all Americans that all of the potential Supreme Court nominees who have been identified as garnering serious consideration from President Trump are women, and working mothers, in fact. All of the names on his short list are fantastic judges and great role models for women in the mold of Justice Ginsburg. AUL reviews the personal and professional record of the women on the “short list” below, and we wish them all the very best.
Amy Coney Barrett
Born in 1972 in New Orleans, Louisiana, Judge Amy Barrett graduated from Rhodes College (magna cum laude, Phi Beta Kappa), with a B.A. in English Literature in 1994, and from Notre Dame Law School, summa cum laude in 1997. While at Notre Dame Law School, she received the highest number of “best in class” awards in the school’s history, received the law school’s highest honor, the Hoynes Prize, and was Executive Editor of the Notre Dame Law Review.
After her graduation from Notre Dame Law School, Barrett clerked for U.S. Circuit Judge Laurence Silberman of the D.C. Circuit (1997-1998), and then for U.S. Supreme Court Justice Antonin Scalia (1998-1999). From 1999-2002, she practiced law in Washington, D.C. She has been a law professor at Notre Dame Law School since 2002, where she teaches federal courts, constitutional law, evidence, civil procedure, and statutory interpretation. During those years, Barrett has been recognized with three Distinguished Professor of the Year awards. She has been a judge in the U.S. Court of Appeals for the Seventh Circuit since 2017 and has issued hundred of opinions from the bench. Barrett and her husband are the parents of seven children, including one with Down syndrome, and two adopted from Haiti.
Federal Judiciary Center Bio
Among other legal and constitutional issues, Professor Barrett has written frequently on precedent and stare decisis. In her law review article, Stare Decisis and Due Process, Barrett was critical of stare decisis. Barrett blamed stare decisis for creating a degree of inflexibility in the courts, specifically in courts of appeal. She called on courts to allow more flexibility and to remove rules that create greater difficulty to overcome previous error.
In Originalism and Stare Decisis,1 Barrett addressed the tension between stare decisis and originalism. She said that originalism does not obligate a justice to reconsider non-originalist precedent sua sponte. She noted that Justice Scalia was willing to overrule precedent outright in many cases, including abortion, because stare decisis factors such as reliance and workability encouraged it.
Barrett has spoken both to her own personal conviction that life begins at conception and to the “high price of pregnancy” and “burdens of parenthood” that especially confront working women. Barrett also noted that scholars from both sides of the debate have criticized Roe for unnecessarily creating the political backlash known colloquially as “Roe Rage,” a dynamic that has since affected everything from federal and state elections to the federal judicial nominations process.
Born in Miami, Florida in 1967, Judge Barbara Lagoa graduated from Florida International University in 1989, receiving her Bachelor of Arts cum laude in English and was a member of the Phi Kappa Phi honor society. Judge Lagoa went on to receive her Juris Doctor from Columbia University School of Law in 1992, where she served as an Associate Editor of the Columbia Law Review. In 2019, she became the first Cuban American and Latina woman appointed to serve on the Florida Supreme Court. Prior to her appointment by Governor Ron DeSantis to the Florida Supreme Court, Governor Jeb Bush appointed her in 2006 to serve on the Third District Court of Appeal, where she was also the first Hispanic woman and the first Cuban American woman appointed to serve on that court. In 2019, she became the first Hispanic female Chief Judge of the Third District Court of Appeal. In 2019, she received her commission as a judge on the U.S. Eleventh Circuit Court of Appeals based in Atlanta from President Donald Trump.
Prior to joining the bench, Judge Lagoa practiced in both the civil and criminal arenas. In 2003, she joined the United States Attorney’s Office for the Southern District of Florida as an Assistant United States Attorney, where she worked in the Civil, Major Crimes and Appellate Sections. Judge Lagoa’s civic and community activities include service on the Board of Directors for the YWCA of Greater Miami and Dade County, the Film Society of Miami, Kristi House, and the FIU Alumni Association. She was also a member of the Federal Judicial Nominating Commission. She is currently a member of the Eugene P. Spellman and William Hoeveler Chapter of the American Inns of Court.
Justice Lagoa is married to Paul C. Huck, Jr., an attorney. They have three daughters. She is fluent in English and Spanish.
Judge Lagoa’s background strongly suggests that she is both a dedicated constitutional originalist and a thoughtful, conscientious jurist. However, she does not appear to have a record on any abortion cases.2
Judge Larsen was born in Waterloo/Cedar Falls, Iowa in 1968, and attended the University of Northern Iowa, receiving her Bachelor of Arts in 1990. In 1993, she received her Juris Doctorate at Northwestern University Law School, where she was Articles Editor for the law review. She clerked for Judge David Sentelle on the D.C. Circuit Court of Appeals (1993-94), and for Justice Antonin Scalia on the U.S. Supreme Court. (1994-95). She then served in the Office of Legal Counsel of the Department of Justice in the George W. Bush administration.3 She served on the Michigan Supreme Court (2015-2017), and was confirmed by the Senate to a seat on the Sixth Circuit Court of Appeals on a 60-38 vote on November 1, 2017.4 Larsen is married to Adam Pritchard, a Michigan law professor. The couple live outside Ann Arbor, Michigan with their two children.
Larsen has said she believes that “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.”5 While on the Michigan Supreme Court, Larsen overruled precedent in a case regarding firearms.6 Larsen has criticized Lawrence v. Texas, specifically the Court’s reliance on international law. She believes until the Court comes up with a better explanation it should abandon its reliance on international law.7
Joan L. Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St Law J 1283 (2004)
Allison Jones Rushing
Born 1982 in Hendersonville, North Carolina, Judge Allison Jones Rushing graduated summa cum laude and Phi Beta Kappa from Wake Forest University in 2004 with a Bachelor of Arts in music. She then earned her Juris Doctor, magna cum laude, from Duke University School of Law in 2007, where she served as executive editor of the Duke Law Journal. In 2005, Rushing was a law student intern with Alliance Defense Fund, now known as Alliance Defending Freedom. After graduation, Rushing clerked for then-Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit from 2007 to 2008, and Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit from 2008 to 2009. From 2009 to 2010, Rushing was an associate at Williams & Connolly. Rushing clerked for Associate Justice Clarence Thomas of the Supreme Court of the United States during the 2010–2011 term. In 2011, Rushing rejoined Williams & Connolly in the Washington, D.C. office, and in January 2017 was named a partner. She left Williams & Connolly after receiving her commission by President Trump to the Fourth Circuit in 2019. She is married to Blake Rushing and they have one child, who was born on their first wedding anniversary.
Judge Rushing has no significant decisions on pro-life issues, although her biography strongly suggests that she would be a committed originalist on the Court.
Bridget Shelton Bade
Born in 1965 in Phoenix, Arizona, Judge Bridget Bade received a B.A. summa cum laude from Arizona State University in 1987 and a J.D. from the Sandra Day O’Connor College of Law at Arizona State University in 1990. After graduating from law school, Bade clerked for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit, then joined the Department of Justice in the Environmental Torts Litigation Section of the Civil Division. In 1995, Bade returned to Arizona to be a Shareholder at Beshears Wallwork Bellamy in Phoenix. In 2006, she become a federal prosecutor with the U.S. Attorney’s Office for the District of Arizona. In 2012, Chief Judge Roslyn Silver selected Bade to be a U.S. Magistrate Judge on the U.S. District Court for the District of Arizona. In 2019, she received her judicial commission from President Trump to become United States Circuit Judge of the Ninth Circuit Court of Appeals. She is married to Tom Bade and has two children.
Judge Bade has no significant decisions on pro-life issues.
Britt Cagle Grant
Born 1978 in Atlanta, GA, Judge Britt Cagle Grant graduated summa cum laude from Wake Forest University in 2000 and went on to graduate with distinction from Stanford Law School in 2007. Between earning her undergraduate degree and attending law school, she worked for former Rep. Nathan Deal’s office, followed by several years of domestic policy work in the White House of George W. Bush.
While in law school, Judge Grant served as the president of the Stanford Federalist Society, the co-founder and co-president of the Stanford National Security and the Law Society, and the managing editor of the Stanford Journal of International Law. After graduating, she clerked for then-Judge Brett Kavanaugh of the D.C. Circuit from 2007-2008. After her clerkship, she worked at the D.C. office of Kirkland & Ellis. In 2012, Judge Grant began work for the Georgia Attorney General’s office as Counsel for Legal Policy, then was appointed Solicitor General of Georgia, in which role she served until her appointment to the Supreme Court of Georgia in January 2017. She received her judicial commission from President Trump in 2018 to serve on the Eleventh Circuit Court of Appeals. She is married to Justin G. Grant, who worked for the Central Intelligence Agency. They have three children.
Federal Judiciary Center Bio
Judge Grant has no significant decisions on pro-life issues, although her biography strongly suggests that she would be a committed originalist on the Court.