Florida judge on Trump short list helped give GOP key legal win. Should she have recused?

©Miami Herald

Newly sworn-in Florida Gov. Ron DeSantis stands behind Barbara Lagoa as she speaks after he named her to the Florida Supreme Court on January 9, 2019 in Miami, Florida. - Joe Raedle/Getty Images North America/TNS

TALLAHASSEE, Fla. — Barbara Lagoa, the daughter of Cuban exiles in Miami who has rocketed onto the president’s short list for the U.S. Supreme Court, has earned a reputation as a conservative jurist with solid credentials who tends to side with business and government in her rulings and believes courts should stick to the plain meaning of the law.

But perhaps the most divisive decision in her 15 years as a judge was voting as a new member of the federal appeals court in Atlanta, which recently handed the Republicans and President Donald Trump a political gift: Lagoa joined the majority in a 6-4 ruling to restrict the right of nearly 800,000 Florida felons who have completed their prison sentences to vote in the November election.

Lagoa’s vote, which has weighty consequences in a battleground state that could prove pivotal in the upcoming presidential election, has outraged Democrats and advocates for freed former felons, who make up a potential new voting bloc that most political analysts expect would lean toward Trump’s opponent, Joe Biden.

Critics argue that Lagoa should have recused herself from the case before the 11th U.S. Circuit Court of Appeals because she had already heard arguments on essentially the same case as a member of the Florida Supreme Court last year. They claim she went back on her word after promising members of the Senate Judiciary Committee during her confirmation for the federal appeals court that she would recuse herself from any cases that she had reviewed while serving on Florida’s courts.

In response to questions from the Senate Judiciary Committee during her confirmation hearing, Lagoa said she would recuse herself “from cases involving either the Supreme Court of Florida or the Florida Third District Court of Appeals while I was a member of either court.”

But that’s not what happened.

“It’s certainly going to be ammunition for Democrats to ask about whether she was being honest with the Senate,” said Howard Simon, former executive director of the ACLU of Florida, which joined with the Campaign Legal Center, NAACP and the Brennan Center to challenge the Florida law requiring felons to pay court fines and fees to attain their right to vote under Amendment 4.

Lagoa and her supporters counter that the cases were technically different — even though the issue was basically the same. While she had heard arguments and commented on the case as a Florida justice, she did not vote on it because she was appointed to the federal bench before the state court ruled.

The case boiled down to whether the Republican-controlled Florida Legislature and Gov. Ron DeSantis acted legally when they required felons to pay outstanding court fees and fines after Floridians had already voted for a constitutional amendment allowing them to participate in elections if they completed their prison sentences. Given her long track record of rulings, including on a state appeals court in Miami-Dade, there was little surprise which way Lagoa leaned: On the side of the GOP government leaders.

“I view her decision as not being results oriented and looking at the plain meaning on what Florida voters voted on when they added that amendment to the (state) Constitution,” said lawyer Justin Sayfie, a lobbyist for Ballard Partners in Washington, D.C., and Florida who was once a top adviser to Gov. Jeb Bush. “It was a very straightforward case of interpreting what the amendment language was and its requirements.”

MIAMI ROOTS

Born in Miami and raised in Hialeah by a Cuban exile family, Lagoa, 52, attended Monsignor Edward Pace High School before graduating with honors from Florida International University and then from Columbia University School of Law, where she served as associate editor of the law review.

Upon graduation in 1992, she worked as an associate attorney at four major law firms in Miami, eventually landing at the behemoth, Greenberg Traurig, where she mainly represented banks, insurance companies and corporations. She also volunteered as a member of the legal team that represented the Miami relatives of Elian Gonzalez, who had lost his mother during a perilous journey from Cuba and was rescued at sea — only to be swept up into an international custody battle with the boy’s Cuban father and the Castro government.

Her career took a dramatic turn in 2003 when she detoured into public service, joining the U.S. attorney’s office in Miami as a prosecutor, an unusual move after spending a decade in private law firms. She first worked in the civil division and then switched to the criminal side.

But her career as a prosecutor would end three years later, when Republican Gov. Jeb Bush appointed her to the Third District Court of Appeal, which reviews cases in the circuit courts in Miami-Dade and Monroe counties. In 2006, she became the first Hispanic woman to serve on that appellate court. In early 2019, she attained that same distinction when she joined the Florida Supreme Court, and again when she was appointed to the federal appeals court in Atlanta.

When Lagoa applied for a seat on the Florida Supreme Court in October 2018, she highlighted a judicial record that embodies the principles of the Federalist Society, which she listed in one line on the application.

The conservative legal society has wielded tremendous sway over Trump’s judicial appointments and counts the late U.S. Supreme Court Justice Antonin Scalia as the group’s champion.

“Anyone who applies for this position can say that they are committed to the separation of powers, the ideal of judicial restraint when deciding cases properly before them, and following the law rather than personal preference,” Lagoa wrote in her Florida Supreme Court application. “I do not know if another applicant will have such an extensive track record proving a commitment to these ideals.”

If nominated and confirmed, Lagoa would secure a 6-3 Supreme Court majority for conservatives, reshaping the highest court for a generation. It would not be the first time.

When she arrived on the Florida Supreme Court for her 12-month stint, she joined two other justices as the conservative choices of newly elected DeSantis. The vacancies were created when three liberal judges who had been appointed to the bench by Florida’s last Democratic governor, Lawton Chiles, reached mandatory retirement age.

One of Lagoa’s first actions was to join with four of her new colleagues in ruling that Miami Beach’s 2016 ordinance to increase its minimum wage violated a 2003 state law, upholding a lower court’s decision. She also voted with the majority in a ruling that made it harder for homeowners to defend themselves against banks that were improperly trying to foreclose upon their homes. And she authored two opinions, both upholding DeSantis’ decision to suspend constitutional officers, including former Broward Sheriff Scott Israel, over his handling of a Parkland high school mass shooting in 2018.

When asked to describe her judicial philosophy, Lagoa says she is an “originalist,” a legal philosophy embraced by the Federalist Society that interprets the Constitution based on what its authors meant at the time it was ratified.

“It is important when you’re looking at the Constitution to see what the original public meaning … of (a) particular phrase (is),” she told the Senate Judiciary Committee during her hearing. “If we are not bound by what the Constitution means and it is ever changing, then we are no different than the country my parents fled from, which is Cuba.”

CAREFUL ANSWERS

Lagoa is a longtime member of the Federalist Society, an association of conservatives and libertarians that has spent decades trying to fill the courts with lawyers who apply a strict reading of the U.S. Constitution that adheres to the original text of the document.

In 2018, during her Senate confirmation to the federal appeals court, Lagoa was asked by Sen. Patrick Leahy, D-Vt., if she believed her membership in the Federalist Society, which describes itself as “a group of conservatives and libertarians with the goal of reordering priorities within the legal system,” could lead litigants to question her impartiality.

She would only say “no” and that she should be judged on her full judicial record.

Leahy asked Lagoa if she had “any contact with anyone at the Federalist Society” about her nomination to the federal bench. She denied any contact.

She did not mention her husband, Paul C. Huck Jr., and his role in the organization. Former Miami state legislator José Félix Díaz told The Washington Post this week that Huck was the “godfather of the Federalist Society in Miami.” Huck is an attorney with Jones Day, the firm that has represented Trump’s campaign, and son of Paul C. Huck Sr., a senior judge in the U.S. District Court for the Southern District of Florida.

It was one of many examples in the record of Lagoa’s careful choice of words to avoid a more complete answer on controversial issues.

Another example was how she answered whether she thought Roe v. Wade was “super-precedent,” the principle that something is so deeply embedded in the fabric of law that it is hard to overturn.

Lagoa said Roe v. Wade is “binding precedent” and “settled law” and “if confirmed, I would faithfully apply this precedent and all other precedents of the Supreme Court.”

But U.S. Rep. Matt Gaetz, a Florida Republican and one of Lagoa’s advocates, also described Lagoa, a Catholic, as “reliably pro-life.”

Lagoa also vowed to “faithfully apply precedent” when asked about the Supreme Court case, Obergefell v. Hodges, which guarantees same-sex couples the right to marry, and Citizens United, which extended First Amendment rights to corporations that make campaign donations.

But when it came to questions about subjects more directly aligned with the president — such as whether Congress may exercise war powers to restrict the president in a time of war, and how the judicial branch should exercise its constitutional duty to prevent abuse of power — Lagoa chose not to answer.

HUNDREDS OF OPINIONS

During her 13-year career on the Third District Court of Appeal in Miami-Dade, she also ruled on a wide array of issues, handling more than 11,350 cases — including writing about 360 majority opinions. She addressed disputes ranging from a $272 fine imposed on a juvenile defendant who broke a truck’s windshield to a citrus-canker class action case to local zoning issues to workers compensation claims.

But of those hundreds of written opinions, only 15 cases dealt with constitutional issues, such as due process, according to a LexisNexis search. Here are a few examples, and they cut both ways, backing individual rights but with limitations.

Almost a decade ago, Lagoa upheld a judge’s decision dismissing a gender discrimination lawsuit by a female employee for an aircraft refueling company who was fired during her probationary period. Lagoa noted the employee failed to make a case that male employees were treated differently, and the company showed her dismissal was not based on discrimination.

In 2018, she ruled that Miami Gardens Police improperly searched the backpack of a man after he had been stopped for running a red light on his dirt bike, and therefore state prosecutors should not have charged him with possession of marijuana and other drugs found inside. His conviction on that charge was reversed.

One longtime U.S. Supreme Court observer said Lagoa clearly has experience as a judge, but perhaps not quite on par with traditional candidates for the highest court in the land.

“She is probably prepared but less prepared than others (for the U.S. Supreme Court),” said Carl Tobias, a law professor at the University of Richmond who studies federal court selection. “She has a decade or more experience in the state system, which are cases of less high profile but are also different from the cases that are the Supreme Court’s steady diet.”

If Trump does pick her to replace Ruth Bader Ginsburg, a decision the president said he will make on Saturday, Lagoa’s supporters say she has the intellect, judicial training and writing skills to serve in the U.S. Supreme Court — along with a deep understanding of the court’s role among the three branches of government and an appreciation for democracy forged in Cuba’s exile community.

“She has the record of a judge who is not trying to insert her own personal opinions in deciding the outcome of a particular case,” said Sayfie, who operates a popular politics website. “It’s a record of looking at the law and its requirements and making a decision based on those requirements. That’s the consistent theme.”

Sayfie and other supporters say she is scrupulously well-prepared, eschewing new-age electronic devices for thick binders with tabs, or in the felons voting case, a cardboard box filled with notes and records she uses to question an advocate.

But others who have appeared before the Third District Court of Appeal say Lagoa tends to rule in favor of banks, corporations, insurance companies and governmental entities and against individuals, with the possible exception of residential property owners.

“In the dozens of cases I have had before her at the Third District, then-Judge Lagoa has been very well prepared, involved in the questioning of counsel, and attuned to the nuances of the issues before the court,” said Roy Wasson, a veteran appeals court lawyer in Miami.

“But when all else is equal and the time comes to cast her vote, either for the ‘little guy’ on the one hand, or a business entity or governmental agency on the other, her honor’s sense of justice seems to tilt the scale for the establishment instead of for the individual.”

Wasson added that she often “avoids declaring her opinion on matters of faith which should have no bearing on matters of law; and she has not held back information about her associations with outside groups that have an agenda.”

RECUSAL BATTLE

In 2018, Florida voters overwhelmingly approved the Amendment 4 ballot question, which read: “This amendment restores the voting rights of Floridians with felony convictions after they complete all terms of their sentence including parole or probation.”

But the state Legislature and the newly elected DeSantis concluded that they also had to pay their court fines and fees to complete “all terms” of their sentence.

Lagoa’s strict interpretation of the felon voting rights law allowed her to conclude that “there is nothing unconstitutional about Florida’s re-enfranchisement scheme.”

The majority of her colleagues on the federal appeals court agreed, giving the GOP a 6-4 win. Their conclusion was reached despite data that shows that Florida has the highest number of disenfranchised felons in the country, and the law requires felons to pay fines and fees that are not tracked by the state. An estimated 85,000 felons have already registered to vote and may be barred from casting a ballot in November.

If Lagoa and Robert Luck, the other Florida Supreme Court justice appointed to the federal appeals court with her, had recused themselves, the ruling in September would have resulted in a 4-4 tie — and a federal district court ruling that the state’s imposition of fees and fines on felons was an unconstitutional “pay-to-vote” scheme would have stood, possibly allowing many more felons to vote in November.

If nominated, Democrats are likely to grill her on her decision to vote.

During her confirmation hearing for the federal appeals court, Lagoa provided answers in writing to the Senate Judiciary Committee — first sharing them with the Office of Legal Policy at the Department of Justice. She wrote: “In terms of specific examples of the types of cases I would recuse from if confirmed, I would recuse from cases in which my husband or his law firm appeared, as well as cases involving either the Supreme Court of Florida or the Florida Third District Court of Appeals while I was a member of either court.”

But after participating in Nov. 6, 2019, oral arguments on the felons’ voting rights case on the Florida Supreme Court, she and Luck argued they did not have to recuse themselves because it was a different case, although the same subject.

“We have carefully considered whether disqualification is legally required, and because we did not serve as lawyers or trial or appellate judges in this case, we’ve concluded that it is not,” they wrote in a 25-page opinion.

Simon, formerly with ACLU Florida, called Lagoa and Luck’s defense a case of “intellectual jiu jitsu” that “clearly affected the outcome.”

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(Tampa Bay Times reporter Lawrence Mower contributed to this report.)

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