Trump ‘Very Close’ to Supreme Court Decision, but May Wait Till Final Hours
Posted July 8, 2018 9:48 p.m. EDT
BERKELEY HEIGHTS, N.J. — President Donald Trump sought to mine a last bit of drama from his decision on a Supreme Court nominee Sunday, saying he might need to extend the process well into Monday, just hours before he is scheduled to announce the pick in a prime-time address.
“I’m very close to making a decision,” Trump said Sunday afternoon as he boarded Air Force One to return to Washington after a weekend spent golfing at his private club in Bedminster, New Jersey, and soliciting opinions from dozens of people about what he should do.
Trump added that he has “not made it final,” calling all four of his final choices to replace Justice Anthony M. Kennedy “excellent,” and adding, “You can’t go wrong.”
Yet Trump is mindful that he has little room for error, given Republicans’ razor-thin majority in the Senate and the looming midterm elections, and he would prefer a choice who can be confirmed relatively easily, according to people who have spoken to him.
He gave himself an extra 12 hours to make his choice, telling reporters it would come before noon Monday. He had previously said the choice would be made by Sunday, before his announcement of the nomination at 9 p.m. Eastern time Monday in a nationally televised event.
Trump, while an incorrigible gossip, can be effective at keeping a secret when he chooses to, and he loves the drama surrounding an important nomination. Over the past three days, he has stoked uncertainty among even his closest aides by asking lots of questions but offering little in return, according to those who have spoken with him.
The suspense-laden process bore similarities, but also some differences, to how the president handled the announcement last year of his first Supreme Court nominee, Neil Gorsuch. White House officials worked hard to encourage speculation over the pick until just before Gorsuch was announced in another prime-time address.
But in that case, the president notified Gorsuch that he was the choice a day before the announcement, and Trump was said to have settled on the judge days before that.
The runner-up last year was Judge Thomas M. Hardiman. While a late addition to Trump’s final four this time around, in recent days the president has expressed fresh interest in him, according to people close to the selection process.
Trump has peppered associates with questions about Hardiman. Some close to the president said he found Hardiman’s personal story, offered to him by the judge’s supporters, to be compelling. Hardiman was the first member of his family to graduate from college, and he helped pay for his education by driving a taxi.
Hardiman has also had an important supporter within the Trump family. He served with Judge Maryanne Trump Barry, Trump’s sister, on the 3rd U.S. Circuit Court of Appeals, in Philadelphia. Barry recommended Hardiman to her brother last year as a good choice for the court, according to two people close to Trump.
Hardiman’s appointment would also bring some educational diversity to a Supreme Court awash in Ivy League diplomas. Hardiman attended the University of Notre Dame and Georgetown University Law Center.
But Trump has also said positive things to associates about Judge Amy Coney Barrett, a staunch social conservative, the people familiar with the process said. He spent part of Sunday at his club with Fox News host Sean Hannity, who favors Barrett, people familiar with their meeting said.
Trump also continued to discuss Judge Brett M. Kavanaugh, a former staff secretary to George W. Bush, who was a favorite of the White House counsel, Donald F. McGahn II, and who had been seen as the favorite last week.
The only judge among the four whom the president appeared to lose much of his interest in was Raymond M. Kethledge. People close to the process said the president had found him likable but comparatively dull. And some conservatives, whose support has guided Trump’s thinking about the courts, have voiced concern about Kethledge on issues like immigration, with some comparing him to Justice David H. Souter, who was appointed by President George H.W. Bush and who disappointed some Republicans with his votes.
Still, Trump was said to be struggling to get past Kavanaugh’s connection to the Bush family. Trump savaged Jeb Bush during the 2016 primary, and the president has remained suspicious about the Bushes.
Kavanaugh has been the subject of an intense campaign of criticism by some conservatives, who have called his decisions in abortion and health care cases insufficiently conservative.
Barrett appeals to the president, the people briefed said, as representing a political statement that could galvanize the conservative base. But Trump has been told by some advisers that he could choose her later, should Justice Ruth Bader Ginsburg, 85, leave the court.
Sen. Mitch McConnell, the top Senate Republican, has cautioned Trump that Hardiman and Kethledge would be the safest picks in terms of Senate confirmation, a process that may have to take place without any Democratic support.
He has said the extensive paper trail that Kavanaugh has left as a White House staff secretary and a judge could give Democrats a cudgel to slow the process and prevent the judge from being seated by the start of the October session of the court.
People close to Kavanaugh have rejected that criticism, saying that he had been included in, but had not created himself, the bulk of the documents related to his time as staff secretary. Some White House officials were furious that the conversation between McConnell and Trump had been revealed by The New York Times on Saturday night.
Still, the paper-trail argument has given Trump a possible reason to avoid appointing someone he is not completely comfortable with. Supporters of Hardiman, who turned 53 on Sunday, also say he would have an easier time getting confirmed than some of the other contenders.
Kavanaugh would face questioning, for instance, about his service under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. And Barrett would face opposition from abortion rights groups, given her academic writings, which included skepticism about how established Roe v. Wade, the 1973 decision enshrining a constitutional right to abortion, was as a constitutional precedent.
While Trump seemed to be pushing himself into an eleventh-hour decision, it is not unusual for presidents to struggle with their choice of a Supreme Court nominee, which is, after all, one of their most important acts and a central part of their legacies. Clinton took months in 1993 to settle on Ginsburg to replace the retiring Justice Byron R. White, first considering an array of other judges and politicians.
The announcement that Clinton had picked Ginsburg came on a Monday. Over the previous weekend, many administration officials were convinced that the nod would go to Judge Stephen G. Breyer, who ended up joining the Supreme Court the following year.
Other presidents have made their choices in a more orderly fashion. Trump’s decision to set a public deadline soon after Kennedy announced his retirement on June 27 may have contributed to the seemingly chaotic quality surrounding his choice.
But one thing that Trump knows is the importance of this nomination to his political base. In an interview on ABC’s “This Week” on Sunday morning, Leonard Leo, one of the president’s key outside advisers on judges, said Trump was aware that his commitment to conservative judges was significant to his victory in 2016.
“What drives the president in this process is that he made the Supreme Court a huge issue in the election, more than any other presidential candidate,” Leo said. “He greatly enthused voters over it, and it was one of the big factors that led to his election and holding the U.S. Senate. And so he kept that momentum going with Neil Gorsuch, and now he’s got another opportunity to do it again.”