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Republicans prepare to move quickly on Supreme Court opening as Trump weighs top contenders

The Washington Post logo The Washington Post 9/21/2020 Philip Rucker, Josh Dawsey, Seung Min Kim
a bench in front of a building: Signs and flowers are seen outside of the Supreme Court on Sunday to honor the late Justice Ruth Bader Ginsburg. © Oliver Contreras/for The Washington Post Signs and flowers are seen outside of the Supreme Court on Sunday to honor the late Justice Ruth Bader Ginsburg.

As President Trump prepares to nominate a successor to Supreme Court Justice Ruth Bader Ginsburg this week, Republican leaders moved urgently Sunday to make the political and procedural case for bucking recent precedent and filling the vacancy before the next presidential term.

Democratic leaders, including presidential nominee Joe Biden, accused Republicans of political opportunism and hypocrisy and vowed to fight any effort to rush confirmation of a Trump nominee in the GOP-controlled Senate. With the election 44 days away, Democrats said it would be a grave injustice and a violation of conscience to advance a Trump nominee before the voters render judgment on the president.

Two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, said over the weekend that whoever is elected president in November should nominate Ginsburg’s replacement. But it would take four Republican senators joining with all 47 Democrats and independents who caucus with Democrats to block consideration of a Trump nominee.

[The latest on the battle over the Supreme Court opening]

It was not publicly known Sunday whether any other Republicans would join Collins and Murkowski, though Trump advisers saw Sen. Mitt Romney (R-Utah) as a possible third defection, according to someone involved in White House deliberations who spoke on the condition of anonymity to discuss the matter. The Senate GOP dynamics should come into clearer focus later this week when lawmakers return to Washington and are able to strategize together, including at their regular Tuesday lunch.

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Republican leaders said Sunday they were pressing ahead to seize a monumental chance to solidify the court’s rightward ideological shift by replacing Ginsburg, a liberal icon, with a conservative jurist.

“I can tell you what’s going to happen,” Sen. John Barrasso (R-Wyo.), chairman of the Senate Republican Conference, said on NBC News’s “Meet the Press.” “The president is going to make a nomination. I believe it’s going to be this week. And Lindsey Graham, chairman of the Judiciary Committee, will hold hearings. And there will be a vote on the floor of the United States Senate this year.”

[Graham — an institutionalist turned Trump loyalist — will play a central role in Supreme Court battle]

Trump said Saturday night that he would nominate a woman, and people involved in the deliberations said the two leading contenders were Amy Coney Barrett and Barbara Lagoa, both federal judges.

The president spent the weekend quizzing advisers and allies about the backgrounds of both women and gaming out the political fallout of either nomination. White House Counsel Pat Cipollone and White House Chief of Staff Mark Meadows are leading the search process, with Cipollone overseeing the legal review and vetting of candidates and Meadows focusing on the political calculations and the state of play in the Senate.

a woman holding a book shelf: U.S. Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett poses in an undated photograph obtained from University of Notre Dame. © Matt Cashore/Notre Dame/Via Reuters U.S. Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett poses in an undated photograph obtained from University of Notre Dame.

Barrett was a finalist for the last Supreme Court vacancy, in 2018, which was filled by Justice Brett M. Kavanaugh. She met personally with Trump for about 30 minutes during that time.

Barrett, 48, an appeals court judge for the 7th Circuit who lives in South Bend, Ind., is a favorite of social conservatives and well known by people in Trump’s orbit. She was one of the late justice Antonin Scalia’s favorite law clerks.

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Senate Majority Leader Mitch McConnell (R-Ky.), who has spoken with Trump twice about the opening, has told others that he would support Barrett and that Republican senators know the most about her and would be comfortable with her, according to two people who have discussed the matter with McConnell.

McConnell and other allies have argued that Barrett would be able to secure the 51 votes needed for confirmation without problems. Influential conservative judicial activist Leonard Leo is supportive of both candidates and has talked with the White House to analyze the candidates, according to people with knowledge of the conversations.

Lagoa has a lower profile, but her stock has been rising rapidly. She has never had a private meeting with Trump, but one adviser who knows her predicted her personality would click well with the president’s because the jurist is “feisty and an engaging conversationalist.”

Lagoa, 52, is an appeals court judge for the 11th Circuit who lives in Miami. The daughter of Cuban exiles, she would become the second Latina on the Supreme Court and has the enthusiastic backing of a number of Trump’s allies in Florida.

a person wearing a hat and smiling at the camera: Barbara Lagoa, a United States Circuit Judge for the Eleventh Circuit, poses in a photograph from 2019 when she was a Florida Supreme Court justice. © Florida Supreme Court/Via Reuters Barbara Lagoa, a United States Circuit Judge for the Eleventh Circuit, poses in a photograph from 2019 when she was a Florida Supreme Court justice.

A number of Trump’s allies have argued Lagoa’s biography would be compelling nationally and boost the president’s election chances in Florida, arguably the most critical battleground state for Trump and one in which high turnout among Cuban Americans is essential for any Republican victory.

Trump has been taken by her Ivy League credentials — she graduated from Columbia Law School — and believes nominating a Latina could accrue to his political benefit, according to another person familiar with internal discussions.

The president has been asking about Lagoa and whether there is anything negative in her background after hearing a chorus of positive comments about her, according to one Trump adviser involved in those discussions.

White House aides have been calling people in Florida to try to learn more about Lagoa and her judicial philosophy.

“Twenty-four hours ago, Amy Coney Barrett was the favorite. I am not sure that’s true anymore,” said this adviser who, like others interviewed in this report, spoke on the condition of anonymity to talk candidly about sensitive discussions.

A second Trump adviser said the president, Cipollone, Meadows and others are “trying to get up to speed on Lagoa very quickly because they like the idea of picking her.” This adviser added, “They know Amy. She’s been through the process before. She’s been fully vetted. They know who she is.”

Trump is making his selection against a ferocious political backdrop: Voting has begun in some states; the first presidential debate is Sept. 29; the coronavirus pandemic is raging coast to coast and has killed nearly 200,000 people in the United States; the economy is sputtering with tens of millions of Americans receiving unemployment benefits; and a reckoning on racial injustice continues to convulse cities and towns across the country.

a person standing in front of a building: Democratic presidential nominee Joe Biden gives a speech at the National Constitution Center in Philadelphia on Sunday. © Demetrius Freeman/The Washington Post Democratic presidential nominee Joe Biden gives a speech at the National Constitution Center in Philadelphia on Sunday.

Amid that maelstrom now begins a Supreme Court confirmation fight. Biden pleaded with Republican senators in an address Sunday to hold off voting on Trump’s expected nominee until after the election.

“We need to de-escalate, not escalate,” Biden said in remarks at the National Constitution Center in Philadelphia. “That’s why I appeal to those few Senate Republicans — the handful who really will decide what happens. Please follow your conscience. Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created. Don’t go there. Uphold your constitutional duty, your conscience. Let the people speak. Cool the flames that have been engulfing our country.”

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Biden and other Democrats sought to cast confirmation of a Trump nominee as a direct threat to the Affordable Care Act, which many Americans rely upon for health coverage during the pandemic. The Supreme Court is scheduled to hear arguments on the law, popularly known as Obamacare, later this fall.

“In the middle of the worst global health crisis in living memory, Donald Trump is at the Supreme Court trying to strip health coverage away from tens of millions of families and to strip away the peace of mind from more than 100 million people with preexisting conditions,” Biden said.

Democrats say the Senate should follow the precedent established by McConnell in 2016, when he refused to hold hearings on President Barack Obama’s nomination of Merrick Garland to fill the Supreme Court seat vacated by Scalia. Garland was nominated eight months before that year’s election, and McConnell and other Senate Republicans maintained that the next president should be the one to fill the seat.

a man wearing a suit and tie: Senate Majority Leader Mitch McConnell (R-Ky.) makes his way to his office at the Capitol on Sept. 16. © Demetrius Freeman/The Washington Post Senate Majority Leader Mitch McConnell (R-Ky.) makes his way to his office at the Capitol on Sept. 16.

But Republicans argued the precedent does not apply because, unlike in 2016, the White House and Senate are controlled by the same party now.

“We were in a situation in 2016 where the White House was controlled by one party, the Senate by another, and the referee in that case was going to be the American people,” Sen. Roy Blunt (R-Mo.) said Sunday on CBS News’s “Face the Nation.” “In this case, both the White House and the Senate have some obligation to do what they think in the majority in the Senate is the right thing to do.”

Blunt, who chairs the Senate Republican Policy Committee, added, “This should take as long as it needs to take, but no longer. There is plenty of time to get this done, but to get it done before Election Day, everything has to work, I think, pretty precisely.”

Marc Short, chief of staff to Vice President Pence, said Sunday on CNN’s “State of the Union,” “I reject the notion there’s hypocrisy. As I said, historical precedent is, when your party is in power, and the president nominates, consistently going back to George Washington, the party has continued to confirm those nominees.”

He added, “The American people wanted Donald Trump to be in a position to make these nominations, and it’s his obligation to do so.”

Trump advisers were largely gleeful to have a new topic to discuss during a difficult campaign and the president views the court battle as a topic that helped him win the 2016 election. On Air Force One Saturday night, Meadows told reporters the Supreme Court choice would change the focus of the election.

Trump has already begun consulting with advisers on the best ways to capitalize on the opening — and was pleasantly surprised that the crowd repeatedly chanted “fill that seat” on Saturday night in North Carolina, a battleground state, according to people familiar with his reaction to the rally.

But the president’s advisers said they are not totally confident that the court fight will solely benefit Trump with some fearing it could also energize Democrats, noting the surge in donations to the part following Ginsburg’s death.

Some advisers are pushing to delay the naming of a nominee a few days to let Ginsburg’s funeral proceedings conclude.

Already, activist groups across the ideological spectrum are planning seven- and eight-figure campaigns aimed at influencing the court decision.

a group of people sitting in a parking lot: A police officer walks outside the Supreme Court as people gather to honor the late Justice Ruth Bader Ginsburg on Sunday. © Oliver Contreras/for The Washington Post A police officer walks outside the Supreme Court as people gather to honor the late Justice Ruth Bader Ginsburg on Sunday.

Demand Justice, a left-leaning group, committed to spending $10 million to fight to ensure no justice is confirmed before the January inauguration and to target any vulnerable Republican senator in a key state who moves ahead with the confirmation process.

On the right, the Judicial Crisis Network also plans to spend $10 million on an advertising and grass-roots mobilization campaign. The Susan B. Anthony List, another conservative activist group, plans to flood the offices of Romney and other targeted senators starting Monday morning, with callers urging them to stand with Trump.

Former president Bill Clinton, who nominated Ginsburg to the high court in 1993, said the GOP push to fill the vacancy could “further spread cynicism in our system.”

“For Senator McConnell and President Trump, their first value is power, and they’re trying to jam the court with as many ideological judges as they can,” Clinton said on CNN’s “State of the Union.”

Democratic congressional leaders warned this weekend of consequences. Senate Minority Leader Charles E. Schumer (D-N.Y.) said that if Republicans act on the court before the election or during the lame-duck session before the 2021 inauguration, then Senate Democrats will retaliate in the new year if they and Biden win in November.

Though the House has no role in judicial appointments, House Speaker Nancy Pelosi (D-Calif.) threatened that her chamber, too, could take steps to thwart Republican action. Asked on ABC News’s “This Week” about the possibility of again impeaching Trump or impeaching Attorney General William P. Barr as a stall tactic, Pelosi responded, “Well, we have our options. We have arrows in our quiver that I’m not about to discuss right now.”

Felicia Sonmez contributed to this report.

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