Trump narrows Supreme Court list as weighty decision looms
Posted September 21, 2020 6:09 p.m. EDT
CNN — President Donald Trump was only seven minutes into his campaign rally Friday when word arrived backstage that would dramatically alter the final stretch of his first term. Yet as his aides debated whether to alert him that Supreme Court Justice Ruth Bader Ginsburg had died, another message arrived from Trump's chief of staff: don't interrupt the President's speech.
So for more than an hour, as the late summer sun set over his northern Minnesota crowd, Trump proceeded as if the race he is currently losing hadn't been thrown into new flux.
After exiting the stage, Trump was informed of Ginsburg's death by officials that included Hope Hicks, his traveling aide Johnny McEntee and social media adviser Dan Scavino. As Elton John's "Tiny Dancer" blasted on loudspeakers in the background, he told reporters he was learning the news for the first time.
The Friday night decision to proceed with his rally amounted to the first in what will be a string of rapid fire choices by Trump and his team meant to harness whatever political advantage comes from a high court vacancy in the contentious final months of a presidential campaign.
Handed a potential lifeline for his flagging political career, Trump faces what some officials view as the most consequential decisions of his presidency, ones that carry with them real-world ramifications for Americans' health care, reproductive rights and the election results themselves.
Trump hopes those decisions will help obscure another real-world impact of his presidency: an unsteady response to the coronavirus pandemic that has dominated the election so far and caused him serious political damage. Even before Ginsburg's death, Trump had mused in private about the potential jolt a Supreme Court vacancy might provide -- and ways an election year selection process might win back voters.
On Monday, Trump's campaign unveiled T-shirts blaring "FILL THAT SEAT," a chant that has supplanted 2016 relics such as "build that wall" and "lock her up" at his rallies.
What effect the vacancy actually has on his political future remains unknown. But mindful of the high stakes and a condensed confirmation timeline, Trump and his aides describe a jump-started process designed to avoid missteps and error at all cost, hoping to avoid anything that would stymie what they view as a fragile advantage in naming a third Supreme Court justice.
At the same time, Trump has made clear he wants to move quickly, hoping to seize momentum in the waning days of the campaign. He said Monday he'd already spoken to some of the candidates earlier in the day and on Sunday. People close to the process said that included Amy Coney Barrett, the front-running candidate who met in person with the President at the White House on Monday.
Flood of advice
In the hours and days following Ginsburg's death, the President has received a flood of incoming advice on who to select and how to proceed -- most of it designed to improve his political prospects, which polls show are still in serious jeopardy amid a pandemic that is nearing 200,000 Americans dead. Inside the White House, a confirmation plan that had been sitting dormant has been activated as Trump weighs two principal contenders, both of whom are receiving support from some of the President's top allies.
While Ginsburg's death was a development White House officials had long viewed as a possibility given her frail condition following bouts of cancer, few anticipated the final weeks of the campaign would be dominated by a Supreme Court confirmation battle.
In the months preceding her death, aides had winnowed a long list of potential replacements for Ginsburg down to a more manageable size, recognizing that speed would be essential the closer the vacancy was to Election Day.
Trump himself had talked privately this summer about the prospect of nominating a female justice in order to boost his support among women voters, who polls show have soured on him amid the coronavirus pandemic, people familiar with the conversations said.
By the time Trump spoke by phone Friday with Senate Majority Leader Mitch McConnell as he was returning from his rally in Minnesota, he already had two names in mind, according to people familiar with the call: the federal judges Amy Coney Barrett and Barbara Lagoa, who are now viewed as front-runners for the slot with Barrett a clear favorite.
As the weekend unfolded, some of Trump's advisers encouraged him to nominate a replacement for Ginsburg as quickly as possible, believing once a name is announced it will be harder for Republican senators to oppose Trump's nominee on procedural grounds. Already, two GOP senators -- Susan Collins of Maine and Lisa Murkowski of Alaska -- have said whomever wins November's election should select Ginsburg's replacement.
But another set of advisers strongly encouraged Trump to wait until after Ginsburg's memorial services, which the Supreme Court said Monday would occur on Wednesday and Thursday this week. Those advisers warned any sign of disrespect for Ginsburg -- who Trump has insulted in the past -- would be used by Democrats to further galvanize their own voters in the lead-up to the election.
The debate still appeared to be unfolding on Monday morning when Trump's press secretary said on Fox that he would "very likely" announce a nominee before Wednesday. A few minutes later, Trump went with a more cautious view, saying on Fox he would make an announcement on Friday or Saturday.
"We want to pay respect," he said.
Nevertheless, Democrats have already mobilized, using Ginsburg's legacy as a beloved figure on the left and a women's rights pioneer to raise hundreds of millions of dollars. Following Ginsburg's death Friday, donations to Democratic candidates and causes via the online fundraising platform ActBlue surged past $100 million.
Trump had been careful over the weekend to honor Ginsburg's legacy, and was uncharacteristically restrained in avoiding mention of their past scuffles (she called him a "faker" in 2016; he said she should resign). Yet by Monday, the President was baselessly writing off her dying wish to be replaced by the winner of the 2020 election as a Democratic ploy. And he was eagerly looking ahead to a race reshaped -- at least for now -- around his pending choice.
"I'd much rather have a vote before the election, because there's a lot of work to be done," he told reporters at the White House before departing for campaign stops in Ohio. "We have plenty of time to do it. And there's really a lot of time."
Inside the White House, the process is being overseen by chief of staff Mark Meadows -- who was spotted on Capitol Hill on Monday -- alongside White House counsel Pat Cipollone, senior adviser Jared Kushner and Vice President Mike Pence.
But the range of voices reaching the President on the matter extends well beyond his core West Wing team. The president of the anti-abortion group Susan B. Anthony List said Monday she had spoken to Trump about the decision. And Trump was essentially on the phone the entire weekend as he campaigned in North Carolina on Saturday and visited his golf course Sunday, two sources said, fielding advice and floating potential nominees to a wide orbit of people.
While the conservative Federalist Society has played a prominent role in supporting Trump's past nominees, and helped craft Trump's list of potential contenders for a court vacancy, its leaders have not been as influential this go-around, according to people familiar with the matter.
In multiple conversations with Trump, McConnell indicated to the President that he and other Republican senators know Barrett well, suggesting the familiarity might help her nomination move quicker, according to a source familiar with the matter.
That sentiment has been echoed by some of Trump's White House advisers, who have encouraged a selection that poses as little opportunity for pitfalls as possible. Barrett has remained the favorite because she is seen as the safest choice in a situation where there is little room for error. A former clerk to the late Justice Antonin Scalia, Barrett was Trump's pick for a seat on the 7th US Circuit Court of Appeals. She has served as a professor of law at her alma mater, Notre Dame.
Barrett was considered for the 2018 Supreme Court vacancy, and interviewed with Trump for the slot, though one official said the two lacked "chemistry" during their meeting. Despite that, Barrett came close to being the choice but ultimately lost out after a push by former White House counsel Don McGahn for Brett Kavanaugh.
Her advocates were told by White House officials after Kavanaugh was ultimately nominated that she was still in the running for another vacancy, according to one person familiar with the conversations. There was a belief among her supporters that Trump favored nominating her to replace a female justice like Ginsburg, the person said.
And though Barrett is the favorite, her tough confirmation fight in 2017 for the appeals court could presage another battle. Democrats questioned her on her opposition to abortion and claimed her devout Catholic faith would color her legal views -- accusations which further endeared her to conservatives.
Trump is also still considering other candidates. After Ginsburg died Friday, the President expressed interest in Lagoa, a Cuban-American judge he had only spoken to once before. He has told allies and friends that he likes the idea of nominating Lagoa and thinks it could be more broadly beneficial to him politically, and told reporters at the White House he may meet with her when he visits Miami later this week.
Some of Trump's political allies also advocated for Lagoa, claiming her hometown could give them a campaign edge in Florida, a crucial swing state. Though a source familiar with the process said Lagoa was vetted for the appeals court and the high court, there was an effort by White House officials to find out more about her this weekend.
Trump aides spoke with people in Florida about Lagoa in an attempt to glean more information. One potential issue that was discussed this weekend was how Lagoa recently joined the majority in a ruling over felons' rights when the 11th Circuit Court of Appeals upheld a requirement for fines to be paid before felons regain the right to vote.
Trump's initial excitement for Lagoa seemed to fade away as the weekend wore on, people familiar with the matter said, though he praised her on Fox.
"She's excellent. She's Hispanic. She's a terrific woman from everything I know," he said. "I don't know her. Florida. We love Florida."
Meadows, meanwhile, is said to have favored federal appeals court Judge Allison Jones Rushing during discussions, though at 38 her young age has been a concern. Cipollone's deputy Kate Todd is also on the shortlist and has admirers inside the White House, but she is not viewed as a serious finalist, an official said.
And in discussing his short-list of candidates on Fox, Trump made mention of "a great one from Michigan" -- a reference, one official said, to federal appeals Judge Joan Larsen.
Still, Trump made clear later Monday his actual shortlist includes only a few names.
"They're all outstanding, but I have one or two that I have in mind," he said.