President Donald Trump’s top aides reached out to prominent conservatives over the weekend to discuss potential strategies for the upcoming battle over a vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg, asking them not to get ahead of the president days before he plans to announce a nominee.
White House chief of staff Mark Meadows, the vice president’s chief of staff Marc Short and the president’s deputy campaign manager Justin Clark have been reaching out to conservative leaders about the high court vacancy, sources familiar with the conversations told McClatchy.
The Trump campaign reinforced that the president would choose his nominee from a list of candidates publicly issued earlier this month.
“Give the president space to make the call,” one participant said of the campaign’s message. “There won’t be any surprises. He’s pulling from the list.”
The judicial appointment could re-energize Trump’s base, and faith-motivated voters in particular, to vote for Republicans in the November elections.
One source familiar with the White House vetting process told McClatchy that the president’s team wants a nominee before the first presidential debate on Sept. 29. At the top of the list are Judges Amy Coney Barrett on the U.S. Court of Appeals for the Seventh Circuit, and Barbara Lagoa on the U.S. Court of Appeals for the Eleventh Circuit.
“There are a lot of great choices on the list and the considerations right now are probably over which nominee can realistically be confirmed,” the source said.
The president is also considering a strategy in which he makes the nomination now and a Senate confirmation vote is not held until after the election, conservatives familiar with the discussions said. That strategy would depend on where Republicans who will decide the vote, such as Utah Sen. Mitt Romney, land on the issue.
A delay in the confirmation vote would provide cover to Republican senators who are on the record opposing an election-year appointment to the Supreme Court such as Sen. Susan Collins of Maine, who is on the ballot this year and said in a Saturday statement that the Senate should not take a vote prior to the presidential election.
“If you say, look we’re going to do it after the election, this is what it comes down to, this is what is at risk, maybe it’s both a motivator and gets you a way to be consistent with your promise to the voters and the base in 2016 election,” a conservative who was on a call with the Trump campaign about the issue said.
Collins is lagging her Democratic opponent, Speaker of the Maine House of Representatives Sara Gideon, by an average of six points in public polling. Trump is behind Democratic presidential nominee Joe Biden by as many as 21 points overall in Maine, which splits its four electoral votes.
Trump dismissed Collins’ concerns, however he acknowledged at a North Carolina rally on Saturday that a vote on the nominee could take place after the election.
“We said that if, for any reason we have a vacancy on the United States Supreme Court, we will fill that vacancy,” he said at the Fayetteville rally. “By the way, we have plenty of time. There’s a lot of time. You know you’re talking about, you’re talking about January 20th right,” he said, referring to the date of the presidential inauguration.
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RISKS OF ‘ROULETTE’
Waiting comes with risks, conservatives are warning.
Marjorie Dannenfelser, head of the anti-abortion group the Susan B. Anthony List, said that senators who currently feel the pressure to vote for Trump’s nominee may not offer their support after November, especially if they lose their election.
“That’s roulette, and I think we shouldn’t be willing to play roulette with something of this consequence,” Dannenfelser told McClatchy.
An appointment could also motivate the Republican base, which Trump has lagged with in recent polling, to cast a ballot in the upcoming contests, some conservatives argued.
David McIntosh, president of the Club for Growth, said Trump could convince Republicans who have not decided whether to vote for Trump to unify around his candidacy. Club for Growth’s polling has identified these voters as having dampened enthusiasm in the election.
McIntosh said his group would be engaging in issue advocacy on the court pick and encouraged Republican lawmakers to embrace the opportunity provided by the court opening.
“If Republicans fail to confirm a Trump nominee at this point, that’s a death sentence for them in the majority,” the former Indiana congressman said. “Get it done, show that they will, and energize their own base going into these tough close elections.”
The Senate will be on a tight timeline to confirm a nominee before the Nov. 3 election.
Family Research Council president Tony Perkins noted that Senate Majority Leader Mitch McConnell publicly committed to voting on Trump’s nominee but did not promise the vote would take place before the election.
“It’s a very short runway. Anything’s possible, but it’s a pretty steep climb,” Perkins said.
‘LAST SURE CHANCE’
But both Republicans and Democrats see Ginsburg’s vacancy as a rare chance to steer the direction of the court for many years.
Republican presidents appointed five of the justices on the current court. Democratic presidents appointed the other three.
“Both sides view this as conservatives’ last sure chance to guarantee a clear majority, because of the uncertainty of the November presidential and senatorial election,” said Alan Dershowitz, a longtime constitutional professor at Harvard and a lawyer to Trump during his Senate impeachment trial.
Major conservative nonprofit groups – Americans for Prosperity, funded by Charles Koch, the Club for Growth, the Susan B. Anthony List and others – plan to actively engage in the nomination fight in support of Trump’s pick.
Adam Brandon, the president of FreedomWorks, said his group had been overwhelmed by calls from conservative activists encouraging them to get involved.
“This is one of those issues that is bigger than Donald Trump,” he said. “It’s very rare in this election that you have an issue that is bigger than Donald Trump. This is it.”
Conservative groups consider the vacancy created by Ginsburg’s death as the chance to finally secure a dependable majority on the court that they had thought was achieved with Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh, only to be disappointed by recent rulings led by Chief Justice John Roberts who was appointed by former President George W. Bush.
“If Republicans are successful at appointing a reliably conservative nominee to fill the vacancy left by Justice Ginsburg, it will be the first time we can really say we have a solid conservative majority on the court since the 1930s,” said Ashley Baker, director of public policy at the Committee for Justice, who worked on the Republican effort to confirm Gorsuch and Kavanaugh.
But new vacancies are possible in a Biden presidency that could undo the efforts of conservatives, Baker said, pointing to the ages of Justice Stephen Breyer, 82, appointed by former President Bill Clinton and Justice Clarence Thomas, 72, appointed by former President George H. W. Bush, now the two oldest justices on the court.
“While Conservatives do now have the opportunity to secure the majority, it is unclear how long that will last,” Baker said. “Any vacancy created by Justices Breyer or Thomas during a Biden administration, or if Republicans were to lose control of the Senate in 2020, would undo that majority.”
Of the 35 Senate seats that are up for a vote this year, 23 are held by Republicans. McConnell, a Kentucky Republican, and Senate Judiciary Committee Chairman Lindsey Graham, a South Carolina Republican, are among the lawmakers competing for reelection.
Republicans, with a 53-47 majority in the Senate, can afford only three defections to confirm the president’s nominee, if the vice president acts as a tiebreaker. In addition to Collins, at least one other GOP senator, Alaska’s Lisa Murkowski, announced this weekend that she would oppose filling the vacancy so close to the election.
Support from Romney, the junior Republican senator from Utah, is also considered uncertain.
McIntosh said that Club for Growth would proactively focus on Romney and Murkowski with its advocacy campaign. He said he would wait and see the statements of Republicans on the ballot this year before adding other senators to his list.
The White House had previously made public a list of candidates for the Supreme Court if a vacancy occurred. The Trump campaign said in a statement on Sunday that Biden should produce a similar list.
“Americans can see the names on his list of potential nominees, while Joe Biden is hiding his list of people he would consider if he were president,” said Tim Murtaugh, communications director for the Trump campaign.
Former Wisconsin Gov. Scott Walker has made it known to the White House that he prefers Barrett.
He is among the conservatives who are arguing that the potential for the results of the presidential election to be litigated is too high to leave what could be the deciding seat on the court open, even though that was also the case four years ago.
Walker recalled the Supreme Court ruling in 2000 that halted a recount in Florida, saying if a similar issue arose in the coming election it could potentially lead to a split court decision if the vacancy remains.
“You could just have an issue pertaining to elections, or what ballots are counted or any number of other things that may not fall along ideological lines,” he said. “If you have a vacancy out there, it opens the door for a split court.”
Dannenfelser said the chance to get another justice on the court is the top consideration for conservatives, and ranks higher on the list of concerns than who wins this year’s elections.
“The Supreme Court is the most important issue here. The elections are the second most important,” Dannenfelser said.