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Law & the Courts

Looking at the Confirmation Questionnaires from Lagoa and Barrett

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

If, as many report, the two most likely candidates to be President Trump’s nominee to the Supreme Court are Amy Comey Barrett and Barbara Lagoa, it is likely that a lot of legal minds are reviewing the questionnaires Barrett and Lagoa submitted as part of their confirmation to the federal judiciary.

This answer from Lagoa is likely to be the focus of any confirmation hearing:

When Chief Justice Roberts was before the Committee for his nomination, Senator Specter referred to the history and precedent of the Roe case law as “super-stare decisis.” One textbook on the law of judicial precedent, co-authored by Justice Gorsuch, refers to Roe v. Wade as a “super-precedent” because it has survived more than three dozen attempts to overturn it. (The Law of Judicial Precedent, THOMAS WEST, p. 802 (2016)) The book explains that “superprecedent” is “precedent that defines the law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.” (The Law of Judicial Precedent, THOMAS WEST, p. 802 (2016)) a. Do you agree that Roe v. Wade is “super-stare decisis”? “superprecedent”?

Roe v. Wade, 410 U.S. 113 (1973), is binding precedent of the Supreme Court and I would faithfully follow it as I would follow all precedent of the Supreme Court regardless of whether it is referred to as “super-stare decisis” or “superprecedent.”

b. Is it settled law?

Yes. For lower court judges, all Supreme Court precedent, including Roe v. Wade, 410 U.S. 113 (1973), is settled law. If confirmed, I would faithfully apply this precedent and all other precedents of the Supreme Court.

When evaluating this answer, keep in mind lower court judges can’t overrule precedent from the Supreme Court — or at least, they’re not supposed to do that. It is also worth noting that conservative and pro-life groups did not see any problems with Lagoa in the past. When Lagoa was nominated to serve on the Eleventh U.S. Circuit Court of Appeals, Susan B. Anthony List president Marjorie Dannenfelser declared in a released statement, “President Trump continues to deliver on his promise to nominate principled judges to the federal bench. The President’s latest round of nominations follows the landmark confirmation of 150 judges during his first term — exceptional men and women who will uphold the Constitution and restore legislative power to the American people and their representatives, as our nation’s founders intended. We thank President Trump, as well as Leader McConnell, Chairman Graham, and the pro-life Senate majority for their unwavering commitment to getting these nominees confirmed.”

However, last month, Senator Josh Hawley of Missouri declared he “will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided. By explicitly acknowledged, I mean on the record and before they were nominated.” (Our Ramesh Ponnuru wrote about the potential complications of that stance here.) Hawley might have a difficult time justifying a vote for Lagoa if he genuinely requires a pre-nomination statement that Roe v. Wade was wrongly decided, or even a post-nomination statement along those lines.

(UPDATE: Hawley’s team reaches out to note that yesterday the senator told CNN’s Manu Raju he believes Barrett has met that standard, but he doesn’t know about Lagoa, as “she doesn’t have as much of a record in some ways as others” on Roe v. Wade.)

As for Barrett, in response to a questionnaire from Senator Richard Blumenthal (D., Conn.), she wrote:

In Planned Parenthood v. Casey, the plurality opinion declined to overrule Roe because, among other things, “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” 505 U.S. 833, 856 (1992). That decision, like all Supreme Court precedents, would be binding upon me as a Circuit Judge if I am confirmed.

Under what circumstances would you decide to defer to your “best understanding” of the Constitution rather than to precedent?

If I am confirmed, there are no circumstances under which I would defer to my best understanding of the Constitution rather than to Supreme Court precedent. As for potential conflicts between my best understanding of the Constitution and Seventh Circuit precedent, I would apply the law of stare decisis. For an explanation of the language you quote in context, please see my Answer to Question 1e from Senator Whitehouse.

Under what circumstances would you find it appropriate for a judge to decline to follow Supreme Court precedent?

None. A lower court’s obligation to follow Supreme Court precedent is absolute. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).


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