Lagoa’s Resume Recalls Conservative Regret Over O’Connor, Souter

Sept. 22, 2020, 6:00 PM

Barbara Lagoa—mentioned as a possible replacement for Justice Ruth Bader Ginsburg on the U.S. Supreme Court—would become the first justice in three decades to arrive with experience as a state court judge. That resume is both a blessing and a curse.

Lagoa joined the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit last December after 13 years as a Florida state court judge. She served on the state’s Supreme Court for nearly a year, with most of her tenure on the state bench as an intermediate appellate court judge.

Her background would make Lagoa an anomaly on the nation’s top court, which is now composed of seven former federal circuit judges and a former U.S. solicitor general. Justice Sonia Sotomayor also served as a federal trial court judge.

Work in the trenches of state court gave Lagoa exposure to a broad range of legal issues, yet without the baggage of an extensive track record on politically charged topics. That lack of a paper trail on big issues that conservatives care about may be one of the things that is holding back her nomination. The last two former state court judges to join the Supreme Court were Republican appointees Sandra Day O’Connor in 1981 and David Souter in 1990. The former was an Arizona trial and appellate judge, the latter a justice on the New Hampshire Supreme Court.

“One of the reasons why state court judges haven’t been nominated is specifically because of Souter and O’Connor,” said Benjamin Barton, a law professor at the University of Tennessee who’s written about justices’ professional backgrounds.

That pair disappointed movement conservatives who felt betrayed by their tendency toward moderation, Barton said. Since then, presidents have tended to tap nominees with more developed records on hot-button issues, which make them more attractive to partisans but potentially harder to confirm, he said.

Trump has met with front-runner Amy Coney Barrett, who joined the U.S. Court of Appeals for the Seventh Circuit in November 2017 and is a favorite of anti-abortion rights advocates, Bloomberg reported.

Lagoa, 52, who would be the fifth woman and second Hispanic ever to serve on the Supreme Court, could help President Trump’s popularity among fellow Cuban Americans in Florida, a state he needs to win again. Lagoa’s parents fled Cuba after the Communist revolution, an experience which Lagoa has said shaped her originalist approach to the law.

Although the Supreme Court has grown more diverse in terms of gender and race since the 1980s, it has also become more homogeneous when it comes to professional experience, scholars said. For example, Justice Elena Kagan’s 2010 arrival on the high court made her the first justice without prior judicial experience in nearly 40 years.

Lagoa’s body of work largely at the state court level could mean Democrats would have less ammunition to use against her, said Carl Tobias, a University of Richmond law professor who tracks judicial politics.

State Court ‘Much Different’

But Lagoa’s lack of experience at the federal level could be an issue if Trump taps her for the high court, said Sara Benesh, a political scientist at the University of Wisconsin who focuses on the judiciary.

“The work of an intermediate appellate court in a state is much different than the work of a Supreme Court justice,” Benesh said.

One clear difference is volume. As an intermediate appellate judge, Lagoa handled an average of 900 cases per year. The Supreme Court grants and hears oral argument in about 80 cases per term.

Although they don’t regularly handle disputes involving the federal Constitution, state court judges are exposed to issues that rarely appear in federal courts, like probate matters, divorce and custody disputes, and a vast swath of criminal cases, legal scholars said. Contract law and common law claims like personal injury, emotional distress, and defamation are also creatures of state law, scholars said.

Lagoa’s experience in Florida courts could help shape her views on the tension between state sovereignty and federal power. A judge’s views on federalism can cut across a range of issues, particularly the federal government’s authority to regulate businesses.

Shaping Views of Federalism

Prior justices who hailed from state court had differing views on the balance between dual sovereigns in the federalist system of government.

O’Connor developed into the “prime theorist of federalism” after coming to the Supreme Court, said Wendy Parmet, a Northeastern University law professor who’s written about O’Connor’s legacy.

While William Rehnquist, the former chief justice who was also committed to reinvigorating federalism, was worried about an overreaching federal government, O’Connor was motivated by the “insightful and nostalgic” theory that states are critical to protecting individual liberty, Parmet said.

But it’s difficult to say how justices’ backgrounds motivate their judicial worldview, Parmet said. Rehnquist was a champion of federalism who spent his entire career in Washington, D.C., she said.

Souter, on the other hand, often dissented from O’Connor and Rehnquist’s opinions that pared back federal power.

William Brennan’s experience on New Jersey’s highest court might have made him less deferential to state’s rights as a Supreme Court justice, said Stephen Wermiel, an American University law professor and co-author of a Brennan biography.

Brennan, for example, was central to the high court’s handling of the 1958 desegregation fight in Little Rock, Wermiel said. The justices were largely driven by the recalcitrance of state officials, he said.

Tea Leaves on Federalism

Lagoa signaled she may be more on the O’Connor-Rehnquist side of the federalism spectrum in a pair of Eleventh Circuit rulings.

Earlier this month, Lagoa wrote a concurring opinion in the Eleventh Circuit’s decision that upheld Florida’s mandate that felons must pay fines before they’re allowed to vote. That law shouldn’t be subject to strict judicial scrutiny because it “would violate the principles of federalism and separation of powers—the two structural guarantors of individual rights and liberty in our Constitution,” she wrote.

Lagoa authored an opinion in August sending a question about how to best view an Alabama law to that state’s Supreme Court. While it’s a federal case, the “principles of comity and federalism” counsel that the Alabama high court is best positioned to interpret its law, she said.

Regardless of how Lagoa’s state court experience may have shaped her judicial philosophy, her particular path won’t determine whether she would be an effective justice if nominated and confirmed, said Virginia Long, a former justice on the New Jersey Supreme Court.

“Some great ones were federal judges, some great ones were state judges, and some great ones were never judges at all,” said Long, now an attorney with Fox Rothschild. “What is required is intelligence, hard work, good judgment, collegiality and the absence of a political agenda.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloombergindustry.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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