Amy Coney Barrett, a federal appeals court judge, has emerged as a front-runner to replace the late Supreme Court Justice Ruth Bader Ginsburg, according to people familiar with the discussions.
President Trump signaled Saturday morning that he would move to fill the vacancy on the high court “without delay,” raising the likelihood that the Senate will try to confirm a nominee before Election Day on Nov. 3 or during a lame-duck session. Trump later signaled he would support a vote before the election.
Others said to be under consideration for the Ginsburg vacancy include Amul Thapar, Barbara Lagoa and Allison Jones Rushing, all of whom are Trump appointees to federal appellate benches.
One source familiar with the discussions cautioned that it’s not a “forgone conclusion” that Barrett will be the pick. A decision is expected in the coming days, they said, and the process is moving quickly.
Another source with knowledge of the process said there is a growing interest among a number of senators as well as some members of the White House staff in having an announcement on the choice before the first presidential debate on Sept. 29.
The source said that Barrett and Lagoa have received significant attention and support among senators and conservative leaders and will almost certainly be very seriously considered by the president. The source also said that Rushing has received support from evangelicals and that Thapar has been mentioned and is someone the president is familiar with. Still, the process remains extremely fluid.
Speaking to reporters on Saturday, Trump signaled he would announce his nominee next week and said it would likely be a woman. He described Barrett as “very highly respected” and Lagoa as an “extraordinary person” when asked about both judges.
Barrett was a favorite among conservatives in 2018 when Trump was mulling who to nominate to fill then-Justice Anthony Kennedy’s seat before he ultimately went with Brett Kavanaugh. But multiple sources indicated she is gaining traction as a likely choice for Trump this time around.
Axios reported in 2019 that Trump told aides he was “saving” Barrett as a potential replacement for Ginsburg.
The 48-year-old judge was included on Trump’s updated list of potential Supreme Court nominees released in 2017. He expanded that list earlier this month.
One source close to the White House said Barrett would have the backing of conservatives in government and outside groups that would throw their muscle behind her nomination.
Judicial Crisis Network spent millions of dollars in support of Kavanaugh’s nomination in 2018 and is expected to be a major player in rallying support for Trump’s eventual nominee to replace Ginsburg.
Barrett, a former clerk for late Supreme Court Justice Antonin Scalia, was nominated by Trump to serve on the 7th U.S. Circuit Court of Appeals in 2017. She was confirmed in a 55-43 vote by the Senate later that year. At the time, three Democratic senators supported her nomination: Joe Donnelly (Ind.), who subsequently lost his 2018 reelection bid, Tim Kaine (Va.) and Joe Manchin (W.Va.).
Kaine’s office noted in 2018 when Barrett was receiving speculation as a potential Supreme Court pick that the Democratic senator viewed supporting her for a circuit seat and voting on a Supreme Court seat as two significantly different decisions.
“A Supreme Court nomination is qualitatively different from one to a lower court,” a spokeswoman for Kaine said at the time.
Barrett’s 2017 nomination was backed by every GOP senator at the time, a factor that could put pressure on swing Republicans to back her if she’s picked for the country’s highest court.
But picking Barrett would all but guarantee an explosive confirmation fight in the Senate and feed a broader all-out culture war months before an election in which Republicans are battling to keep control of Congress and the White House.
Barrett would also face scrutiny over her previous statements on ObamaCare’s birth control mandate, which she called a “grave violation of religious freedom.”
She’s also questioned the Supreme Court’s landmark ruling in Roe v. Wade and the court’s deference to legal precedent — raising the prospect that she would be more likely than other picks to vote to rein in or even overturn the 1973 decision legalizing abortion.
During the term that ended in July, the Supreme Court struck down a Louisiana abortion restriction when Chief Justice John Roberts joined the four liberal justices, including Ginsburg, to form a bare 5-4 majority. Barrett’s replacement of Ginsburg would make it more likely the court upholds state limits on abortion in the future.
Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) would be viewed as immediate swing votes. Collins said in 2018 that she would not support a nominee who is “hostile” to Roe v. Wade.
Trump and Republicans are sure to face heavy backlash from Democrats for moving on the nomination not two months from the 2020 presidential election. Senate Minority Leader Charles Schumer (D-N.Y.) has been deeply critical of Barrett, predicting in 2018 that she would be an “activist” on the Supreme Court and would vote to overturn Roe v. Wade and strike down the Affordable Care Act’s protections for preexisting conditions.
Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement Friday that Trump’s nominee would receive a vote on the Senate floor.
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise,” McConnell said Friday.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell continued.
The decision represents a reversal for McConnell, who refused to hold a vote for Merrick Garland, former President Obama’s nominee to replace Scalia in 2016, because it was an election year, holding the seat open until Trump nominated Neil Gorsuch to the bench in 2017.
McConnell has argued that the current circumstances are different because the Senate and White House are controlled by the same party, not opposing ones. McConnell, in a letter to the Senate Republican caucus on Friday night, offered a prebuttal of the argument that Republicans, if they fill the seat, will be doing a political 180 from 2016.
“We followed the Biden Rule in 2016, which provided that the Senate will not fill Supreme Court vacancies that arise in presidential election years when the presidency and the Senate majority are held by opposing parties,” McConnell wrote in the letter.
Ginsburg’s death, which was announced by the Supreme Court late Friday, injected further chaos and uncertainty into the 2020 presidential election between Trump and Democratic nominee Joe Biden. The fight over her potential successor is likely to energize conservatives and liberals alike, injecting a new hot-button issue into the election as states begin early voting.
If Barrett or another conservative justice were to fill Ginsburg’s vacant seat, it would transform the Supreme Court from a fragile 5-4 conservative majority into a commanding 6-3 conservative supermajority. Such a shift in the court’s ideological balance could have profound implications on everything from abortion rights to race relations to the Second Amendment.
In the term that begins next month, the court will consider the latest Republican challenge to the constitutionality of the Affordable Care Act. The addition of another conservative to the bench could mean that Roberts, who joined the liberals to uphold ObamaCare in a landmark 2012 decision, no longer holds the decisive vote, making it more likely the law is struck down.
The justices in coming months will also hear a case that pits religious protections against LGBT rights and a dispute over the scope of legal immunity for police officers accused of wrongdoing. The court has also faced about half a dozen election-related lawsuits this cycle and may be called upon to resolve additional disputes related to the upcoming Nov. 3 vote.
Updated: Sept. 19, 6:43 p.m.