Appointing Judge Lagoa would have helped Trump secure Florida, Texas, New Mexico and Arizona, in view of the impact on the Latino community.

 

Should Donald Trump leave the White House on 20 January 2021, the primary reason would be an obsessive focus to what he sees as his base. Judge Amy Coney Barrett reflects the characteristics of this group more than Judge Barbara Lagoa does, which is probably why the Indiana jurist was chosen over the equally impressive Hispanic from Florida. The US President did not even deign to meet Judge Lagoa, and this came after floating reports that she was on his short list of candidates. It seems obvious in retrospect that there was just a single name on that list, and this was Amy Coney Barrett, a judge whose judicial philosophy is the polar opposite of the justice she is expected to replace, Ruth Bader Ginsburg. Although reticent to repeat before the Senate Judiciary Committee her views on abortion, healthcare and voting rights that had been articulated by Barrett several times in the past, “following the tracks” of her past record (as Senator Amy Klobuchar put it) made clear what her verdict would be in such matters, once she was sworn in. Her performance before the Senate committee was steely in the determination to remain fixated that the views she held were the only ones worth having. It was amusing to hear from Republican Senators words of praise for Justice Ginsburg now that she was no longer a threat to the conservative aims of the Federalist Society. There will be millions who are worried that access to affordable healthcare will be the casualty once Judge Barrett of the 7th Circuit becomes Associate Justice Barrett of the US Supreme Court. There will be more millions of women who would be anxious about the fact that the era when abortion was close to impossible may return courtesy the Supreme Court. Labour unions would discover that the gutting of the right to unionise that began with the Trump presidency would be carried further by the very court promised by Trump to his key backers in 2016. This is a court so skewed towards the Republicans that any pretence of equal justice would go out of the window.

Social bias of a different kind (not based on income but race) was legitimised when Chief Justice Robert Taney and six other Supreme Court justices ruled that black people were not entitled to the protections mandated in the Constitution. This was in 1857 in the case of a slave, Dred Scott, who was returned into captivity in a decision the odour of which lingers over the court to this day. Looking at the progress that President Trump is making in fashioning a court that looks backward for inspiration rather than ahead, it is clear that four more years of President Trump would result in a court that would generate verdicts that deny the existence of the 21st century. Given the cautious nature of Joe Biden, it is not clear if he would favour expanding the Supreme Court bench from 9 to 15, the step needed to restore the court to the liberal path that it first began to tread under Chief Justices such as Earl Warren. The present US Supreme Court Chief Justice was part of the legal team that succeeded in ensuring that the Court awarded the 2000 election to George W. Bush. Coincidentally, it was President Bush who appointed John G. Roberts, Jr. to the court. With the entry of Amy Barrett, three of the nine justices would have served on the Bush legal team during the SC hearing that flipped the election against Al Gore.

A court as skewed in favour of 1950s logic (masquerading as 1788 holy writ) as the US Supreme Court will be once Amy Coney Barrett enters would be a disaster for tens of millions underprivileged in the US. Unless wisdom prevails over prejudice among the Trump judges or the Democratic Party wins the US Senate as well as the White House. This would enable the court to be expanded, and should President Biden demur, he would have a revolt within the party on his hands. Whatever be his personal views, it is likely that Biden would have to agree to such an expansion, especially if marriage, abortion and healthcare rights get sharply curtailed by the conservative majority in the court. Much has been made of the manner in which President Franklin D. Roosevelt backtracked on his 5 February 1937 threat to increase the number of Justices to a total of 15. What is left unsaid is that the very judges who opposed everything that the US President did fell in line once the threat of expansion was made, so that Roosevelt had no reason to go ahead with his plan. It is unlikely that Associate Justices Gorsuch, Kavanaugh and Barrett would similarly change their views. The three are strong-minded individuals who would rather be right (in more senses than one) than change their opinions because of shifting political winds. Increasing the strength of the court to 15 would be an effective way to ensure that the US Supreme Court does not do precisely what those appointed by Trump say they will avoid, which is to make policy. There would be no need for the present Court to make policy as long as the White House remains Trumpian, but the situation would change were Biden to prevail over last minute reports about Hunter Biden that are being tossed around by the Trump campaign and its friends in the media, who are admittedly less in number than friends of Biden within a US media angered at President Trump’s sallies against any newspaper less than flattering about his performance.

Given that Biden has the advantage in the 3 November contest and the Republican base would anyway vote for Trump rather than switch to Biden, it would have been politically beneficial to appoint Judge Lagoa rather than Barrett. She would join Associate Justice Sonia Sotomayor, an appointee of President Obama as the second Hispanic on the court. Trump’s brains trust obviously considered this too much of an innovation. As the election verdict may show, this may have been a mistake. Appointing Judge Lagoa (who has a sterling record, as does Justice Sotomayor) would have helped Trump secure Florida, Texas, New Mexico and Arizona, in view of the impact on the Latino community. This segment is not happy with the concentrated attention of the Democratic Party on African Americans, but are not enthusiastic about Trump. Passing over a Hispanic jurist in the manner just seen, may cost enough votes to make the difference between victory and defeat for President Trump, who needs every state and every vote he can get. The choice of a Hispanic would also have blunted the perception among many independent voters that Trump is racist, an image that is not an advantage across most of the US

Amy Coney Barrett may enter the US Supreme Court as an Associate Justice, but this will cost Donald Trump electoral votes lost as a consequence of her clearly expressed verdicts and views on the law and its application. Judge Lagoa would have been a safer choice for Donald Trump, if he is to do a 1948 and ensure re-election.