Barrett Remains Top Contender For Supreme Court Pick

Law360 (September 24, 2020, 10:33 PM EDT) -- Seventh Circuit Judge Amy Coney Barrett appears to have maintained her spot atop a short list of U.S. Supreme Court candidates ahead of President Donald Trump's public announcement Saturday, conservative sources told Law360 on Thursday.

"I think in my mind I have one," Trump told Fox News Radio on Thursday. He called Judge Barrett "an incredible person, brilliant and everything else" but added that he was weighing four other women as well — though he said he wasn't sure he would meet with another prominent contender, Eleventh Circuit Judge Barbara Lagoa.

Judge Barrett was seriously considered in 2018 when Trump ultimately chose D.C. Circuit Judge Brett Kavanaugh to replace the retiring Justice Anthony Kennedy, conservative sources told Law360, and appears likely to win Trump's nomination to replace the late Justice Ruth Bader Ginsburg. She reportedly visited the White House both Monday and Tuesday.

"That is an indication to me," said one person familiar with the process. "One might speculate that she is sticking around the White House to begin the prep process even before the nominee is announced," since Republicans want to move quickly and confirm a new justice before Election Day.

The former Notre Dame law professor brought strong support from religious conservatives, especially after she faced Democratic questioning at her Seventh Circuit confirmation hearing about her personal views and the influence of her Catholic faith.

Carrie Severino, president of the conservative Judicial Crisis Network, also said Judge Barrett's "graceful" performance at the confirmation "gave her that national prominence."

Trump said he has five main contenders. Judge Lagoa likely remained in the top tier, Severino said. The former administration official said it would be surprising if Judge Lagoa weren't being interviewed, at least by White House officials if not Trump himself.

Trump traveled to Florida on Thursday and was scheduled to spend the night near Miami, Judge Lagoa's hometown. The president declined to answer questions about whether he would meet with her.

"I may," Trump said Monday. "I'm getting a lot of phone calls from a lot of people. She has a lot of support. I don't know her, but I hear she's outstanding."

Judge Lagoa was a state appellate judge for 13 years and briefly on the Florida Supreme Court last year until joining the Eleventh Circuit.

She has had an advocate in Sen. Rick Scott, R-Fla., who said Tuesday that he called Trump to recommend Judge Lagoa. Scott added that her selection could boost the president's reelection campaign.

"She had a very good reputation," Scott told reporters. "She would be the first Supreme Court justice from Florida. She would be the first Cuban-American on the Supreme Court. ... It'd help him a lot in Florida [and also] in Texas, in Arizona, in all those places," referring to states with large Hispanic populations.

Judge Lagoa might not have as much support from religious conservatives focused on abortion, however.

Sen. Josh Hawley, R-Mo., took a stand this summer and promised to "vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided."

Hawley told reporters Tuesday that he was "very comfortable" with Judge Barrett, while "with Judge Lagoa, I just don't have nearly as good of a sense."

All the candidates are going through a final vetting process led by White House Counsel Pat Cipollone, a Kirkland & Ellis LLP veteran who is expected to make a recommendation to the president.

One of Cipollone's deputies, Gibson Dunn & Crutcher LLP alum Kate Todd, is also under consideration for the high court seat — although the former administration official called Todd a "very, very, very dark horse candidate" who would do little to help the president politically.

Two other federal circuit judges were also in contention. Trump has mentioned Sixth Circuit Judge Joan Larsen by name. White House Chief of Staff Mark Meadows has reportedly boosted Fourth Circuit Judge Allison Jones Rushing, a fellow North Carolinian.

After Trump announces his choice Saturday, Republicans want to move quickly and confirm a justice before Election Day. Trump said Wednesday that he expects the election will end up in the courts and he wants a ninth justice seated to avoid the possibility of a tie vote.

The path to confirmation became easier Tuesday when Sen. Lisa Murkowski, R-Alaska, told Alaska Public Media that while she thought a vote should wait until after the election, she would not necessarily vote against Trump's nominee.

That appeared to be a reversal from Murkowski's comments last week.

On Sept. 18, hours before Justice Ginsburg's death was announced, Murkowski had told the same news outlet, "I would not vote to confirm a Supreme Court nominee. We are 50-some days away from an election."

--Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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