Meet The 5 Finalists For President Trump’s Next Supreme Court Nomination

On Friday, September 18, Justice Ruth Bader Ginsburg passed away at the age of 87, after a valiant battle with pancreatic cancer. She was a legendary litigator for gender equality, an inspiration to countless girls and women, and a “jurist of historic stature,” in the words of her longtime colleague, Chief Justice John Roberts. Her death is a great loss, not just to the Supreme Court and to the legal community, but to our country and to the world.

Over the weekend, on Twitter, I highlighted some of the wonderful tributes and testimonials to Ginsburg. There are so many amazing ones, and I’m sure I missed a good number, but this essay by Nina Totenberg, the renowned Supreme Court correspondent and longtime friend of Ginsburg, is one of my favorites. Linda Greenhouse’s New York Times obituary for RBG is also well worth reading.

As many of us noted on Friday, Ginsburg’s passing also has major implications for the future of the Supreme Court and the November elections. I didn’t want to get into them right away, instead wanting to take at least the weekend to focus on RBG’s extraordinary life and legacy. But now that several days have passed and many legal and political commentators have started exploring what Justice Ginsburg’s death means for the Court, I will join the fray.

Here are my thoughts on the five individuals — all women, pursuant to President Donald Trump’s promise to nominate “a woman, a very talented, very brilliant woman” — who are reportedly under consideration as his Supreme Court nominee.

Amy Coney Barrett: 1-to-1 odds (50 percent)

Age: 48 (born January 28, 1972)
Current role: Judge, Seventh Circuit (since November 2, 2017)
Education: Rhodes College (B.A.), Notre Dame (J.D.)
Clerkship(s): Judge Laurence Silberman (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 55-43
ABA rating: Majority Well Qualified, Minority Qualified

In a Friday night phone call with Senator Mitch McConnell after the news of Ginsburg’s death broke, Trump mentioned just two possible nominees: Judge Barrett and Judge Barbara Lagoa (11th Cir.). Barrett has been on Trump’s radar for quite some time. He interviewed her two years ago, in the summer of 2018, for the Supreme Court nomination that ultimately went to Brett Kavanaugh, even though she had been on the Seventh Circuit for less than a year by that point. And she apparently came very close to getting it.

At the time, I suggested that Barrett should acquire more judicial experience and be nominated for a future vacancy. And I specifically suggested, back in June 2018, that she could be nominated to replace Ginsburg: “There’s no denying that replacing a woman — and historic crusader for women’s rights — with a man, and probably a straight white man at that, isn’t a great look. Better to save Barrett for the future, by which point she will have more judicial experience under her belt.”

It seems that Trump liked that idea. In March 2019, Axios reported that Trump said of Barrett, “I’m saving her for Ginsburg.” And now that time has come.

Trump has wasted no time in meeting with Barrett, who made her way to the White House and met with the president yesterday. According to the New York Times, Trump “spent much of the day with her and later told associates that he liked her, according to people close to the process, who considered her increasingly likely to be the pick.”

(One wonders whether having them spend so much time together was an attempt by Barrett backers to get Trump more comfortable with her. At their prior interview back in 2018, the thrice-married, not-very-religious Manhattan billionaire and the devoutly Catholic, midwestern mother of seven reportedly lacked “chemistry,” concluding their conversation before their allotted time was up.)

What are the advantages of nominating Barrett? Well, how much time do you have?

[UPDATE (9:15 p.m.): In case it’s not clear from context, I’m writing this post from the perspective of the Trump Administration. So when I refer to “advantages,” I’m referring to advantages in terms of either promoting a conservative agenda at the Supreme Court or strengthening Trump’s electoral prospects. Advantages to Trump and the Republicans are, of course, disadvantages when viewing the situation from the perspective of the Democrats.]

I could write a whole other post about why Barrett is Trump’s best pick, in terms of someone who would be both a superb nominee, measured in terms of (1) political advantage and (2) confirmability, and a superb justice, measured in terms of (1) brilliance and (2) conservatism (in a Republican administration; replace this with “liberalism,” or maybe “progressivism,” in a Democratic administration). For now, I will simply refer you to this excellent analysis by conservative commentator Sohrab Ahmari, who makes a comprehensive and compelling case for Barrett.

Her advantages are manifest and manifold. It’s easier to talk about her disadvantages — or really her disadvantage, singular. The only area where Barrett doesn’t lead the list of contenders is confirmability. She’s very conservative and very Catholic, and so liberals and progressives are freaking out over how she might rule as a justice, especially on such precedents as Roe v. Wade (which she is bound to follow as a lower-court judge, but able to revisit as a Supreme Court justice). She was confirmed by a vote of 55-43, with just three Democrats — Joe Donnelly, Tim Kaine, and Joe Manchin — crossing the aisle to vote for her. She might not win the votes of Susan Collins and Lisa Murkowski, moderate female Republican senators who favor abortion rights.

But in this highly politicized time, winning Senate confirmation is like passing the bar exam: you just need to do it, and nobody cares about the margin. And the Republicans should have the votes. It’s quite possible that even a senator who has said there shouldn’t be a vote before the election will, if such a vote is called, cast her vote in favor of the nominee, or at least abstain.

(For example, note that the statement by Senator Collins on the Supreme Court vacancy simply expresses her belief that there should not be a Senate vote prior to the election; she does not commit to voting against the nominee if such a vote takes place over her objection. And despite her support for Roe, it’s possible that Collins could be won over by Barrett — who seems to win over everyone she meets — just as Collins was won over by then-Judge Kavanaugh.)

[UPDATE (9:40 p.m.): Collins has clarified that she will vote “no” on any nominee brought to the Senate floor before Election Day. Murkowski, however, has not yet staked out a position. UPDATE (10:15 p.m.): Murkowski said today that while she opposes having a vote this close to the election, if a vote goes forward anyway, she can’t rule out voting for the nominee.]

Because of Barrett’s credentials and conservatism, combined with the political advantages for Trump in terms of galvanizing evangelicals and Catholics in midwestern battleground states, she is the odds-on favorite.

Barbara Lagoa: 3-to-1 odds (25 percent)

Age: 52 (born November 2, 1967)
Current role: Judge, Eleventh Circuit (since December 6, 2019)
Education: Florida International University (B.A.), Columbia Law School (J.D.)
Clerkship(s): none
Senate vote history: 80-15
ABA rating: Unanimously Well Qualified

Judge Lagoa is less well-known than Barrett, since this is her first time in the SCOTUS spotlight. For an excellent overview of her superb credentials and record, see this op-ed by her fellow Floridian, former Acting Associate Attorney General Jesse Panuccio. (He wrote it in support of her Eleventh Circuit nomination, but the analysis carries over to her SCOTUS candidacy.)

Lagoa’s resume — Columbia Law School, Columbia Law Review, and service as both an assistant U.S. attorney and a state appellate judge, on both the Third District Court of Appeal and the Florida Supreme Court — is very strong. It might not be as dazzling as Barrett’s — Barrett clerked for Justice Antonin Scalia, while Lagoa didn’t clerk at all — but it’s worth noting that the ABA committee on judicial nominees unanimously rated Lagoa “Well Qualified” for the Eleventh Circuit, while rating Barrett “Well Qualified” by a mixed vote.

What might give Lagoa the edge over Barrett? There are two possible factors.

First, Lagoa was confirmed to her current post on the Eleventh Circuit by a vote of 80-15 — an overwhelming margin in these highly partisan times, when superbly qualified judges squeak by with party-line votes — and she was confirmed very recently, less than a year ago (on November 20, 2019). It would be difficult for the Democrats to oppose a nominee who many of them supported just last year.

Second, Lagoa is Latina (Cuban-American) — the first Latina to serve on the Florida Supreme Court — and she is very popular in her home state. Florida is, of course, a big-time battleground state, which Trump carried in 2016, but where Joe Biden now holds a narrow lead in the polls. Nominating Lagoa to the Supreme Court could excite the Cuban-American community, a crucial conservative constituency in Florida, and help Trump take back the Sunshine State.

But in the end, despite being extremely impressive, Lagoa isn’t quite as compelling as Barrett. The political considerations — shoring up conservative support and increasing turnout in midwestern battleground states, versus shoring up conservative support and increasing turnout in Florida — are probably a wash. Lagoa is also slightly older than Barrett, turning 53 in November (while Barrett doesn’t turn 49 until January). So Barrett still has the edge.

Allison Jones Rushing: 9-to-1 odds (10 percent)

Age: 37-38 (born 1982)
Current role: Judge, Fourth Circuit (since March 21, 2019)
Education: Wake Forest (B.A.), Duke Law School (J.D.)
Clerkship(s): Judge Neil Gorsuch (10th Cir.), Judge David Sentelle (D.C. Cir), Justice Clarence Thomas
Senate vote history: 53-44
ABA rating: Majority Qualified, Minority Well Qualified

Judge Rushing has strong support from White House Chief of Staff Mark Meadows, her fellow North Carolinian, as well as social conservatives tied to the Alliance Defending Freedom (ADF), a conservative Christian group she interned for during law school. Like the other contenders, she has excellent credentials, having clerked for not one but two current members of SCOTUS — then-Judge Neil Gorsuch, and Justice Clarence Thomas. Before taking the bench, she was a partner at the high-powered D.C. law firm of Williams & Connolly, where she worked closely with Kannon Shanmugam, a leading Supreme Court advocate (who has himself been mentioned over the years as a possible SCOTUS nominee).

Rushing’s main advantage: she’s 38. Rushing’s main disadvantage: she’s 38.

Rushing also has less judicial experience than Barrett or Lagoa, having served on her current court for a year and a half. Barrett has been on the Seventh Circuit for three years as of November, an entirely respectable tenure (and longer than, say, Justice Clarence Thomas’s year and a half on the D.C. Circuit). Lagoa has been on the Eleventh Circuit for less than a year, but she has been an appellate judge since 2006, when she was appointed to the state bench.

I’ll say of Rushing what I said of Barrett a few years ago: save her for a future vacancy (maybe that of her former boss, Justice Thomas — although he has made it clear that, rumors notwithstanding, he’s not going anywhere). Nominating her now will give the Democrats too much grist for their mill, including many puns about “rushing” her elevation to the high court.

Joan Larsen: 19-to-1 odds (5 percent)

Age: 51 (born December 1, 1968)
Current role: Judge, Sixth Circuit (since November 2, 2017)
Education: University of Northern Iowa (B.A.), Northwestern Law School (J.D.)
Clerkship(s): Judge David Sentelle (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 60-38
ABA rating: Unanimously Well Qualified

I’m surprised Judge Larsen isn’t getting more buzz in the SCOTUS sweepstakes. She would be a great nominee and a great justice.

First, she has impeccable credentials: she graduated first in her class from Northwestern Law, clerked for Justice Scalia, worked at Sidley Austin, and served in the Justice Department’s prestigious Office of Legal Counsel, before joining the faculty of the University of Michigan Law School. Second, she has ample judicial experience: three years on the Sixth Circuit (she became a judge on the same day as Barrett), preceded by two years on the Michigan Supreme Court. Third, she hails from the battleground state of Michigan, where she is a popular figure, having won her seat on the state’s high court with almost 60 percent of the vote. Fourth, she’d be tough to oppose, having been confirmed to her current seat by a solid margin of 60-38, after the ABA unanimously rated her Well Qualified.

At 51, Larsen isn’t the youngest of the finalists, with Barrett and Rushing as her juniors. But she’s not the oldest either, with Lagoa a year her senior.

Why isn’t she getting more traction? Beats me. But for whatever reason, she’s not in the tippy-top tier of contenders — and with Trump planning to announce a nominee on Friday or Saturday, there’s not much time for her to change that.

Kathryn Comerford Todd: 19-to-1 odds (5 percent)

Age: 44-45 (see her 2004 New York Times wedding announcement, when she was 29)
Current role: Deputy White House Counsel
Education: Cornell University (B.A.), Harvard Law School (J.D.)
Clerkship(s): Judge J. Michael Luttig (4th Cir.), Justice Clarence Thomas
Senate vote history: N/A
ABA rating: N/A

Trump likes familiar faces and prizes loyalty, so one shouldn’t count out Kate Todd, who has served in the White House Counsel’s office since 2019, playing a crucial role in judicial nominations. Like the others on this list, she has a gold-plated resume: Cornell, Harvard Law (magna), a SCOTUS clerkship with Justice Thomas, and partnership at a leading law firm (Wiley Rein).

The challenge for Todd, compared to the four other finalists, is that she isn’t currently a judge. There have been many excellent justices with no prior judicial experience — e.g., Justice Elena Kagan, who served as Solicitor General but not as a judge. But it does give Democrats a talking point, during a time when not giving them talking points is a priority. Also, because Todd has spent much of her career “inside the Beltway,” nominating her might not offer as much political advantage to the president (although as you can see from her New York Times wedding announcement, she is from Peru, Indiana, where her father retired as an assistant chief of the Peru Fire Department — a nice biographical detail to trot out at a SCOTUS nomination announcement).

My suggestion: if he’s elected to a second term, Trump should reward Kate Todd for her White House service by nominating her to the D.C. Circuit (something I floated as a possibility as early as 2017). Like her former boss Thomas, she could serve on the D.C. Circuit for a year or two, then be nominated for a future vacancy.

[UPDATE (9:15 p.m.): Or, since there currently isn’t any vacancy on the D.C. Circuit, Trump could nominate Todd to the Indiana-based seat on the Seventh Circuit currently occupied by Amy Coney Barrett, assuming Judge Barrett becomes Justice Barrett.]

The field: 19-to-1 odds (5 percent)

As we’ve learned over the past four years, Trump’s mind can change quickly. He has shown more steadiness on the Supreme Court than on many other matters, perhaps realizing its importance to his electoral fortunes. But the former reality TV star always enjoys putting on a show, including one with a big reveal, so there’s a chance — rather small, but not nonexistent — that he’ll go with someone other than the five finalists.

I do think, however, that Trump will at least stick to his not-so-short shortlist, which has now swelled to 45 names, after his release earlier this month of a fourth list with 20 more names. So for those of you keeping track at home, the seven women on the Trump list who are not listed above are, in alphabetical order, Judges Bridget Bade (9th Cir.), Allison Eid (10th Cir.), Britt Grant (11th Cir.), Martha Pacold (N.D. Ill.), Sarah Pitlyk (E.D. Mo.), Margaret Ryan (Armed Forces App.), and Diane Sykes (7th Cir.).

In this group, I’d say that Grant, 42, has the best shot at breaking out. She’s a Stanford Law grad, a former Kavanaugh clerk (from his time on the D.C. Circuit), the former Solicitor General of Georgia, and a former Georgia Supreme Court justice.

If Trump really surprises us by nominating a man — which I don’t think he can do, having just promised us a woman, but Trump has often done things that people said he couldn’t or wouldn’t do — then I think the pick will be Judge Amul Thapar (6th Cir.), who would at least make history as the first Asian and South Asian American justice.

But let’s not overthink this or get caught up in wild speculation. Trump’s first two Supreme Court picks were longtime leading contenders, consistent with conventional wisdom, and his third one will probably be too.

Judge Amy Coney Barrett, all eyes are on you.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].