U.S. President Donald Trump appears focused on naming one of two conservative female jurists he appointed to federal appellate courts to replace Supreme Court Justice Ruth Bader Ginsburg, the liberal icon who died last week.
Trump told a political rally Saturday night in Fayetteville, North Carolina that he will make the nomination this week and that “it will be a woman.” He earlier named Amy Coney Barrett of the Chicago-based 7th Circuit appellate court and Barbara Lagoa of the Atlanta-based 11th Circuit as possible candidates.
Supporters chanted, “Fill that seat,” and Trump said that is exactly what he intends to do.
But Democratic presidential candidate Joe Biden urged Senate Republicans not to vote on any candidate for the Supreme Court so soon before the November election.
"Voters of this country should be heard ... they're the ones who this Constitution envisions should decide who has the power to make this appointment," Biden said Sunday in Philadelphia. "To jam this nomination through the Senate is just an exercise of raw political power."
Nomination brawl looms
Trump’s intention to make an appointment six weeks before he faces a bitter re-election contest against Biden on November 3 instantly touched off a rancorous political fight in Washington between Republican colleagues of the president in the Senate who say they will support his nominee and Democratic lawmakers who called for the selection to be delayed until either Trump or Biden takes office in January for a new four-year White House term.
Trump wants the Senate to quickly confirm his choice before the election, but it’s unclear whether Republicans, with a 53-47 majority in the chamber, will act before Election Day.
In 2016, Republicans refused to allow consideration of former President Barack Obama’s final Supreme Court nominee, Merrick Garland, following the death of Justice Antonin Scalia in February of that year. They argued that high court vacancies should be left unfilled during an election year so the American people can weigh in on the choice.
Then-candidate Donald Trump also said the nomination should wait until a new president was sworn in.
“I think the next president should make the pick, and I think they shouldn’t go forward, and I believe I’m pretty much in line with what the Republicans are saying," he told CNN in March of 2016.
At least a handful of Republicans have already said they want to delay a confirmation vote on a high court nominee, at least until a lame duck congressional session after the election, even though by then Biden could be the president-elect and Democrats may be poised to take control of the Senate in early January. Or Trump could win a second term and Republicans retain their Senate majority.
Both Barrett, 48, and Lagoa, 52, would draw staunch Republican support and likely vocal Democratic opposition because both, with life-time appointments, could serve for decades on the Supreme Court and push its current 5-4 conservative edge to 6-3 with the replacement of Ginsburg, who served on the court for 27 years before succumbing to her fight against cancer.
Whoever is chosen would play a role in making key court decisions in the coming years on abortion rights, gun restrictions, religious liberty, freedom of speech, immigration, health care law and an array of other contentious issues.
Trump’s Supreme Court nominee would be his third, after he already won Senate approval for two other conservative judges, Neil Gorsuch and Brett Kavanaugh, both following heated confirmation hearings.
Three potential nominees
In a call to Mitch McConnell, the Senate Republican majority leader, Trump mentioned both Barrett and Lagoa as favorites, along with discussion of a third woman he had appointed, Allison Jones Rushing of the of the 4th Circuit Court of appeals in the mid-Atlantic region. All have drawn wide support from the conservative legal establishment in the U.S.
Lagoa had the easiest Senate confirmation among the three women, with a majority of Democratic senators supporting her in an 80-to-15 vote.
Lagoa was the first Cuban American woman to serve on the Florida state Supreme Court before becoming a federal judge in 2019.
"She’s an extraordinary person,” Trump has said. “I’ve heard at length about her. She’s Hispanic and highly respected -- Miami. Highly respected."
Barrett and Rushing both drew wide Democratic opposition to their appointments to appellate courts.
Barrett taught law at the University of Notre Dame, one of the most prominent Catholic universities in the United States, for 15 years before Trump named her to the appellate bench in 2017. In opposing her appointment then, Democrats voiced concerns about her professed role of religion in her life.
They cited one of her comments at Notre Dame, where she told students that a “legal career is but a means to an end … and that end is building the Kingdom of God.”
Republicans view her as reliably conservative and a future Supreme Court vote to overturn the landmark 1973 decision legalizing abortion rights in the U.S., but Barrett has offered conflicting comments on how she might vote on abortion cases.
During her confirmation hearing to the appeals court, Barrett said she would “follow all Supreme Court precedent without fail” and would regard decisions such as Roe v. Wade, the key abortion rights case, as binding precedent.
“I would never impose my own personal convictions upon the law,” she said.
But she also has written that judges shouldn’t be held to upholding Supreme Court precedents, such as the abortion decision.
The 38-year-old Rushing won her appellate court confirmation last year with party-line Republican support over Democratic opposition.
Democrats and civil rights and gay and lesbian groups opposed her nomination.
They cited her internship with Alliance Defending Freedom, an Arizona-based conservative, Christian legal nonprofit that defended a Colorado baker in a Supreme Court case who fought for the right not to bake a cake for a gay wedding and in another instance that allowed companies to opt out of providing insurance for contraceptives for employees because of the owners’ religious beliefs.
Public opinion debate begins
On Sunday, Democrats were reminding their Republican counterparts of their refusal to consider President Obama’s nominee during the 2016 presidential race, as Republicans tried to make the case that this year is different.
Two Republican Senate supporters of Trump told Sunday talk shows they intend to push for approval of his nominee before the election.
“We’re going to go move forward without delay,” Republican Senator Tom Cotton of Arkansas told “Fox News Sunday.”
Senator Ted Cruz of Texas said confirmation of a ninth justice on the court before the election was essential to avoid possible, indecisive 4-4 votes on any election issues that might emerge in the event of a disputed vote.
He said there is a “serious possibility of a constitutional crisis” in the event of a close vote, much like in 2000 when a court decision led to Republican George W. Bush claiming the presidency over Democrat Al Gore as vote counting was stopped in the pivotal state of Florida.
“The people pick the president, and the president picks the justice. That is how this works,” Democratic Senator Amy Klobuchar said on “Meet the Press.” “They set this new precedent in 2016, and they’ve got to follow their own words.”
Also on “Meet the Press,” Republican Senator John Barrasso of Wyoming scoffed at Democratic complaints about the nomination process.
“Let’s be very clear - if the shoe were on the other foot and the Democrats had the White House and the Senate, they would right now be trying to confirm another member of the Supreme Court,” Barrasso said.
Former Democratic presidential candidate Hillary Clinton – whose husband, former President Bill Clinton, nominated Ginsburg for the high court in 1993 – said the Republican attempt to push through a nomination was a symptom of a confirmation process that is “absolutely broken”.
“Our institutions are being basically undermined by the lust for power – power for personal gain in the case of the president or power for institutional gain in the case of Mitch McConnell – at the cost of ensuring that our institutions withstand whatever the political winds might be,” she said Sunday on “Meet the Press”.