Washington, D.C.: President Donald Trump is driving to execute the same playbook in selecting a new Supreme Court nominee that last year delivered swift confirmation of Justice Neil Gorsuch, following a methodical course in hopes of avoiding the lurching disorder that so often engulfs his White House.
As Trump looks to reorient the nation’s high court with a replacement for retiring Justice Anthony Kennedy, he has left himself little room for improvisation — in part because he has delegated and outsourced much of the spadework.
Using Gorsuch as a model, the president has said his next nominee will be chosen from a preselected list of 25 candidates, most of them already fixtures on the federal courts who have been subject to public and internal vetting.
The interview process for a half-dozen or so finalists is beginning, including private sit-downs with Trump starting this weekend at his Bedminster, New Jersey, golf course, as well as sessions with White House Counsel Donald McGahn and formal FBI background checks. An announcement date has also been set: July 9, the first Monday after the July 4 holiday and the day before Trump jets to Brussels for a weeklong European trip.
With just four months until the midterm elections, when any Democratic gains in the Senate would jeopardise a Trump nominee, the White House is working with Senate Republican leaders to set a rapid timeline for voting on a nominee by October so they can take advantage of the GOP’s razor-thin majority in the chamber. Trump and senior White House officials already are personally lobbying key senators, labouring to till the ground ahead of what is expected to be a ferocious nomination battle.
Trump says he understands the stakes.
“Outside of war and peace, of course, the most important decision you make is the selection of a Supreme Court judge,” the president told reporters Friday.
In most other realms, Trump is quick to reject norms and resist the established order. Where previous presidents zigged, the 45th almost always wants to zag. But not when it comes to the Supreme Court. So far, at least, Trump is taking direction from his counsellors, including two with deep roots in Washington’s conservative network: McGahn and Leonard Leo, who is on leave from the Federalist Society to informally advise on judicial nominations.
Since before taking office, Trump has strategised with McGahn, Leo and others about aggressively filling federal court vacancies to permanently shift the judiciary to the right. The pace has been historic — and, for conservatives, the outcome has been an undeniable success.
“This president had a vision,” Leo said. “He did something entrepreneurial and different. He had a very clear sense of what he wanted, he spent a lot of time asking questions about [the late] Justice [Antonin] Scalia and Justice [Clarence] Thomas and other members of the court, and he got to know Justice Kennedy a little bit. I have been really impressed with how he conducted this process. He’s in control of it.”
Trump has told advisers he is looking for three overarching attributes in a replacement for Kennedy. First, one adviser said, Trump insists upon an “extraordinarily well qualified” nominee with a superlative resume. The president is especially drawn to contenders with name-brand degrees, such as from Ivy League universities like Harvard or Yale. He also wants to see a portfolio of solid academic writing, though this adviser acknowledged Trump does not care to read it; he simply wants to know it exists.
Secondly, Trump has said it is essential his nominee be “not weak,” meaning someone with independent judgement and the courage to buck “the political and social fashions of the day,” as the adviser put it.
Thirdly, Trump privately says he wants a nominee who will “interpret the Constitution the way the framers meant it to be,” according to the adviser, who spoke on the condition of anonymity to relate a private discussion with the president.
And as he does with all job candidates, Trump will be looking also for personal chemistry, central-casting looks and relatable life stories. Last year, Trump was drawn to Thomas Hardiman, runner-up to Gorsuch in the court sweepstakes, in part because of his working-class roots. Hardiman was the first in his family to graduate from college, helped pay for his education by driving a taxi, and now is a federal appeals court judge in Pittsburgh, an area of Pennsylvania where Trump has a strong political following.
Hardiman is believed to be a contender this time as well. Trump’s shortlist also is said to possibly include US Appeals Court Judge Amy Coney Barrett of Indiana; US Circuit Judge Brett Kavanaugh of Maryland, a former Kennedy law clerk; US Circuit Judge Raymond Kethledge of Michigan, who was a finalist last year; and US Appeals Court Judge Amul Thapar of Kentucky.
Last Wednesday night in Fargo, North Dakota, just a few hours after Kennedy announced his retirement, Trump told a large crowd at a campaign rally that he was “honoured” to have the opportunity to select his replacement and talked about his criteria.
“We have a pick to come up,” Trump said “We have to pick a great one. We have to pick one that’s going to be there for 40 years, 45 years. We need intellect. We need so many things to go. You know, there’s so many elements go into the making of a great justice of the Supreme Court. You’ve got to hit every one of them.”
Though he and his aides were hopeful Kennedy might retire this summer at the conclusion of the court’s term — and found ways to subtly encourage him to do so — the 81-year-old justice’s announcement came as a surprise.
On the morning of his announcement, Trump was on the phone with Senate Majority Leader Mitch McConnell and asked whether he believed Kennedy would step down. McConnell responded that he would believe it when he sees it — and that he had been hearing Kennedy would not retire for years, according to two people familiar with the conversation.
A few hours later, Kennedy was at the White House personally notifying Trump of his decision. The president and McConnell spoke again, according to two officials briefed on the call, and they underscored the significance of the vacancy. Kennedy was the critical swing vote, and replacing him with a staunch conservative would solidify the right’s majority on the high court.
Josh Holmes, a close adviser to McConnell, said it is “almost impossible to overstate how big of a deal [the Kennedy vacancy is] for conservatives at-large, but obviously very especially for the Trump administration. I think if you are right of centre, there is absolutely nothing to criticise in terms of how this administration has processed nominations to the judicial branch.”
Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said, “This is really a second opportunity for him to fulfil one of his most important campaign promises.”
Democratic leaders say the Senate should wait until after the midterm elections so that the newly-installed Senate could consider the nominee in early 2019. They argue a delay would be in keeping with the precedent McConnell set in 2016, when he put off consideration of Merrick Garland, then-President Obama’s nominee to fill Scalia’s seat, until after the presidential election. Trump won, of course, and quickly nominated Gorsuch, who was confirmed in April 2017 by a 54 to 45 vote.
