Washington Wednesday: SCOTUS nominees

MARY REICHARD, HOST: It’s Wednesday, July 4th, 2018.

Glad to have you along for today’s episode of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up on The World and Everything in It: Washington Wednesday.

The nation’s capital is still buzzing about Justice Anthony Kennedy’s retirement announcement last week. When he finally steps down the end of this month, Kennedy will bring to a close 30 years on the Supreme Court.

In the words of President Trump, Kennedy’s a very spectacular man and the president said he would immediately work on finding a replacement.

For his part, Senate Majority Leader Mitch McConnell said the Senate would promptly get to work on whomever the president chooses.

MCCONNELL: The Senate stands ready to fulfill its constitutional role by offering advise and consent on President Trump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy’s successor this fall. 

That’s not all that’s happening this fall. The midterm elections are happening, too, and polls show Democrats have a good chance to take control of Congress — both the House the Senate.

Looking forward to that, Senate Minority Leader Chuck Schumer argued that consideration of Trump’s nominee ought to be put on hold for now. It ought to happen after the House and Senate elections. Schumer tried to make the case that Republicans would be hypocritical to consider a Supreme Court nominee with elections looming.

SCHUMER: Our Republican colleagues in the Senate should follow the rule they set in 2016 — not to consider a Supreme Court justice in an election year… Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then.

But Republicans point out the difference between presidential and midterm elections, so they’re plowing ahead. And there seems little-to-nothing the Democrats can do to stop them. Instead, they’ve shifted to the issues—such as abortion—that they see as the most important in the confirmation battle ahead.

The liberal group Demand Justice has announced it will spend $5 million to oppose the president’s nominee. The conservative Judicial Crisis Network has indicated it plans to spend at least as much supporting the new nominee as it did Justice Neil Gorsuch last year. And that was about $10 million.

So it’s shaping up to be the most expensive confirmation battle in U-S history.

WORLD Radio Managing Editor J.C. Derrick is here now. He spent five years covering the political scene in Washington, and last week he wrote about the Kennedy retirement for WORLD Magazine.

J.C., let’s start with the meetings this week. Who did President Trump call to the Oval Office?

J.C. DERRICK, MANAGING EDITOR: Well, he declined to say himself, but the four names leaked out pretty quickly. They are: Amy Coney Barrett, Brett Kavanaugh, Raymond Kethledge, and Amul Thapar. All of them are federal appeals court judges—meaning the level right below the Supreme Court. And two of them were put there by President Trump. Those two are Barrett and Thapar. Kethledge and Kavanaugh are both George W. Bush appointees.

And I’ll tell you one other thing two of these names have in common. The president campaigned on a list of 21, and it became 20 after Gorsuch joined the court last year. But in November, the White House announced five new names were joining the list. Amy Barrett and Brett Kavanaugh were two of those recent additions.

OK, so Barrett and Kavanaugh, do you think they are the finalists then?

DERRICK: Well, they are finalists, but the White House says the president will meet with two or three more this week. One of them is Joan Larsen, who was the top female candidate last time. President Trump likes the fact that Larsen was on the Michigan Supreme Court, because there’s a sense of finality there. You have to own your decisions more than these circuit court judges who have the Supreme Court as a backstop for bad decisions.

The other person we know is in the running is Thomas Hardiman. If that name sounds familiar, it’s because Hardiman finished second to Gorsuch last year for the first Supreme Court opening. Remember Trump actually summoned both of them to Washington to try to keep the suspense going until he made the official announcement.

OK, so that’s six names. That lines up with President Trump saying there are “about five” on the list, and two of them are women. Tell me what you know about what the president is looking for in a nominee.

DERRICK: Well, we know he wants an originalist—someone who interprets the Constitution as it was written. But I think we also have to acknowledge he’s relying heavily on the advice of his advisers. Two conservative groups—the Federalist Society and the Heritage Foundation—essentially came up with this list of 25, and they’re feeding him information about these candidates. Obviously they all have impressive resumes in terms of education and current positions.

But some do stand out more than others. Younger candidates have thinner resumes, but they would likely be on the court longer—so there’s some tension there. All six of the names we’ve discussed here are between 46 and 52 years old. So the president is clearly looking to have a long-term impact on the court.

Alright, let’s talk confirmation politics. A longtime Democratic talking point is “war on women,” specifically accusing Republicans of warring against them. Do you think that’s in the back of Republican minds, and that maybe nominating a woman here be a way to defend against that charge?

DERRICK: It depends on who you talk to. There are certainly a lot of conservatives clamoring for a woman, since the three women currently on the court are all part of the court’s liberal bloc. I mean, can you imagine if the court ended up overturning Roe v. Wade with an all-male majority? The optics would be awful.

On the other hand, there’s a line of thought that says a woman actually might encounter more opposition than a man would. I spoke with Carrie Severino, the president of Judicial Crisis Network, about this. And she said, if anything, the left would be more incensed about having a conservative woman on the court.

As evidence, she cited the confirmation hearing last year of Amy Coney Barrett. Now this was back in September. Barrett had been nominated to the Seventh Circuit Court of Appeals, so she was testifying before the Senate Judiciary Committee. Listen to California Senator Dianne Feinstein discussing Barrett’s Catholic faith.

FEINSTEIN: I think, in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country. 

Ah, remember it well. I’ve even seen coffee cups bearing the slogan “the dogma lives loudly within me.” Senator Feinstein got a lot of blowback for that.

DERRICK: That’s right—she did. So much so, in fact, that she took a relatively unknown Notre Dame law professor and made her into a conservative hero.

Barrett wasn’t on the president’s shortlist at that point. But two months later, she was on the list. And based on what I’m reading and the sources I’ve spoken to, I’d say Barrett is—at least right now—the leading candidate to join the the court.

And one of the big arguments for Barrett is that only nine months ago 55 senators voted to confirm her to the Seventh Circuit Court of Appeals. That includes both of the pro-abortion Republicans and three Democrats in red states. Remember, 10 Democrats in Trump states are up for reelection this fall, and this vote will take place only weeks before voters head to the polls.

Putting those senators in a pretty tight spot. What else can you tell me about Barrett?

DERRICK: Well, she’s the mother of seven children, and she’s the youngest of the current shortlist candidates. Only 46. She graduated from Notre Dame Law School and later taught there. In between she clerked at the Supreme Court for Justice Antonin Scalia.

Maybe that explains why the Democrats are training their guns on Barrett and no one else, at least for now.

DERRICK: Right targeting only Barrett—by name at least. Minority Leader Schumer preemptively went after Barrett in a series of tweets this week. He said—quote—“Judge Barrett has given every indication that she will be an activist judge on the Court.” And specifically he cited Roe. v. Wade and Obamacare as being in danger.

And that’s the two-pronged argument I think we can expect from Democrats on almost any nominee—abortion and healthcare. But outside groups have started attacking Barrett on a variety of issues. There’s actually a #StopBarrett hashtag on Twitter. So it seems like she’s definitely generating the most buzz from both sides right now.

Are there any candidates on the shortlist getting conservative pushback?

DERRICK: Yes, at least two. Raymond Kethledge wrote an opinion that concerns some Second Amendment advocates, so it’s likely the NRA is pushing back on him behind the scenes. Also, there’s an orchestrated campaign against Brett Kavanaugh. Some conservative and pro-life groups are concerned that he didn’t go after Roe last year in a case involving the illegal immigrant who was seeking an abortion. Not everyone is concerned about that, since Roe v. Wade wasn’t the issue before the court. But some activists are going after him for his silence.

J.C. Derrick is WORLD Radio’s managing editor. J.C., thank you.

DERRICK: Sure thing, Nick.

(AP Photo/Dennis Cook, File) In this April 26, 2004, file photo, Brett Kavanaugh appears before the Senate Judiciary Committee on Capitol Hill in Washington.

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