Cuban-American judge Barbara Lagoa, who’s being considered for Ruth Bader Ginsburg’s seat on the U.S. Supreme Court, served on the Florida Supreme Court for less than a year, one of the shortest terms in Florida Supreme Court history.
According to a Florida Phoenix review of the 91 jurists who have served on the court, only three justices of the state Supreme Court have served terms shorter than her 336 days — Robert Luck, whom DeSantis placed on the court five days after Lagoa, and the late Wade Hopping, appointed by Gov. Claude Kirk in August 1968 but who lost the next election that November.
That was before Florida shifted to its merit-retention system for choosing justices.
The short stints by Luck and Lagoa came as the pair moved on to the U.S. Court of Appeals for the 11th Circuit, based in Atlanta. Lagoa has been at the 11th Circuit since December, also less than a year.
The length of Lagoa’s service may — or may not— hurt her chances to rise to the highest court in the land, the U.S. Supreme Court. President Donald Trump is pursuing a woman for the Ginsburg replacement, and Florida’s Republican establishment is pushing for Lagoa.
Previously, Lagoa served 13 years on the 3rd District Court of Appeal, the intermediate state appellate court in South Florida; then-Gov. Jeb Bush had placed her on the court in 2006. Before that, she’d been an assistant U.S. attorney and a litigator with Greenberg Traurig, according to her Florida Supreme Court biography.
(Bush competed with Trump for the 2016 GOP nomination for president and there is little love lost between the families.)
Lagoa is among five women on Trump’s short list. The others are Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit in Chicago, Judge Allison Jones Rushing of the U.S. Court of Appeals for the 4th Circuit in Richmond, and Kate Todd, a deputy White House counsel. (Trump also referenced “a great one from Michigan,” and the Detroit News said it is Michigan federal appeals judge Joan Larsen.)
Lagoa became the first Latina to serve on the Florida Supreme Court, and she helped Gov. Ron DeSantis advance his goal of shifting the court’s jurisprudence to the right, even though her tenure was short.
At the U.S. Court of Appeals for the 11th Circuit, Lagoa participated in a ruling significantly limiting the reach of Florida’s Amendment 4, the 2018 constitutional amendment that had promised to restore voting rights to as many as 1.4 million former felons.
Florida’s Republican establishment has been lining up behind replacing Ginsburg before the presidential election in November and specifically behind Lagoa, including the state’s two U.S. senators, Marco Rubio and Rick Scott, as reported by Politico and additional news sources.
They reportedly see her appointment as an olive branch to South Florida’s Cuban-Americans.
“If the president picks Barbara Lagoa, they will be dancing salsa with joy in Hialeah well past November,” U.S.Rep Matt Gaetz told Politico.
DeSantis told reporters following Tuesday’s Cabinet meeting that he hasn’t spoken to Trump about the appointment but that Lagoa’s selection would “be a big deal” in South Florida.
“Whether helps [the president politically] or not — it might — I just think it would really be a source of pride for all Floridians but particularly our folks down in southern Florida that you could go from Hialeah to the Supreme Court,” the governor said.
Lagoa participated in only 31 rulings while on the Florida Supreme Court, not counting administrative rule changes authorized by the justices. Many involved unsigned unanimous opinions, according to an analysis by the Phoenix.
That’s the way courts tend to deal with routine cases or when there’s broad agreement — for example, by barring lawsuits by vexatious litigants unless they can persuade a licensed attorney to sign on.
Others of these cases were significant, indeed, as with the August 2019 denial of an appeal by the “I-95 Killer” of gay men during the 1990s, Gary Ray Bowles, who subsequently was executed. Another, in May, authorized the execution of Bobby Joe Long, who’d confessed to murdering 10 women in Tampa in 1984.
In April 2019, Lagoa voted to withdraw a ruling issued before she joined the court, in Glass v. Nationstar Mortgage, that would have allowed homeowners to collect attorney fees if they prevailed in litigation against mortgage lenders.
In written testimony during her nomination hearings for the 11th Circuit, Lagoa attributed her vote for the turnaround to the court’s limited jurisdiction under the Florida Constitution to hear the case unless two or more lower appellate courts had disagreed with each other about the legal principle at issue.
In June 2019, Lagoa joined a concurring opinion by Justice Alan Lawson in D.M. v M.D., in which the court with one dissent relinquished jurisdiction on similar ground. The case involved termination of a father’s parental rights but the trial judge hadn’t issued written reasons for the termination.
Lagoa twice joined opinions upholding higher electrical rates approved by the Florida Public Service Commission: in April allowing Florida Power & Light to recover costs of mitigating salt-water intrusion into the Biscayne Aquifer from the cooling process at the Turkey Point nuclear plant and in June allowing utilities to recover investments in solar-generating infrastructure.
She wrote the opinion in April 2019 upholding DeSantis’ suspension of Broward County Sheriff Scott Israel and delivered a June concurrence backing the governor’s suspension of Okaloosa County school superintendent Mary Beth Jackson. The governor alleged that misconduct by Israel contributed to the death toll in the 2018 Marjory Stoneman Douglas High School shootings and that Jackson neglected her duty regarding reporting child abuse.
“Where the suspended officer falls within one of the constitutionally enumerated categories and the governor has filed the executive order of suspension with the state custodian of records, the judiciary’s sole role in this process is limited to a facial review of the executive order of suspension to determine whether it contains allegations that bear some reasonable relation to the charge made against the officer,” Lagoa wrote in the Israel case.
In November, Lagoa was a vigorous participant in questioning involving Amendment 4 during a hearing before the Florida Supreme Court. As the Phoenix reported at the time, she directed “sharp questioning” at proponents of the measure, noting that their own voter guide had argued that Amendment 4 would restore voting rights to Floridians “who have completed the terms of their sentence including any probation, parole, fines or restitution.”
“This is what was told to voters of Florida,” Lagoa said.
She and Luck had departed the state court by the time it issued an advisory opinion sustaining DeSantis’ argument that the requirement applied notwithstanding ability to pay.
Still, after joining the 11th Circuit, Lagoa and Luck both declined to recuse themselves from the case, notwithstanding their earlier involvement.
U.S. Senate Democrats wrote to the pair wondering why they stayed on the case. Both judges insisted that the Code of Conduct for U.S. Judges did not mandate their withdrawal because the state hearing involved a technically different legal matter to the appeal before them on the 11th Circuit.
They both voted to hear the matter before a full-court panel and in the subsequent ruling again agreed with DeSantis’ position.
As before at the state level, Lagoa was an active questioner of the attorneys for the plaintiffs during oral arguments in August.
Lagoa joined Judge William Pryor’s majority opinion taking an expansive view of state authority to restrict access to the ballot and contributed a concurrence emphasizing that felons have alternatives to paying those “legal financial obligations.”
These alternatives, Lagoa said, include executive clemency provided by the governor and Florida Cabinet entirely at their discretion. What she didn’t say is that DeSantis has not convened a clemency hearing in nine months at that point.
However, a clemency hearing has been set for Wednesday.
Update: This article has been updated to include DeSantis’ comments following Tuesday’s state Cabinet meeting.