McConnell had a rebuttal: Choose Amy Coney Barrett instead, according to GOP leadership and White House aides. McConnell argued that Barrett, an ardent social conservative, would have the best chance of uniting the party – and if Trump was even thinking of choosing someone else, he should call McConnell and give him a chance to change his mind President.
The majority leader’s call with the president was sandwiched between intense lobbying sessions with the president’s top aides on September 19. Before speaking to Trump, McConnell told White House attorney Pat Cipollone and chief of staff Mark Meadows that Barrett had the best chance of confirmation. . She was the “obvious” choice, McConnell said, even as Meadows asked her about appeals court judge Allison Jones Rushing.
On Monday, eight days before the presidential election, Barrett was confirmed. This is a victory not only for McConnell and Trump; It marks a sea change in how Republicans treat judicial candidates amid the decades-long war over abortion rights. Just two years ago, Barrett was seen as perhaps too conservative to be confirmed by a narrow Republican majority in the Senate, and too hostile to Roe vs. Wade. This time around, McConnell asked the White House not to meet with anyone other than Barrett, aides say.
The change comes after Republicans won two midterm seats in 2018, as well as a more rightward shift in the conference’s center of gravity. Soon Barrett began to rise through the ranks among Republicans to the point that when Ginsburg died in late September, it seemed almost inevitable. This spring, McConnell and Andrew Ferguson, his chief counsel, began discussing who they might have to fill Ginsburg’s vacancy should it arise in the final weeks of Trump’s term. At that meeting, the GOP leader and his top aides settled on Barrett, according to the executive aide.
By the time she was confirmed 52-48, all Republicans other than Maine Sen. Susan Collins voted for her, with Collins only expressing her opposition to confirming a high court nominee in an election year. . There wasn’t even much drama at the end.
“We did a lot of outreach to find out where the people were, who they loved. And by the time this one became vacant, there were a lot of unsolicited applications [requests from senators]”I want Barrett,” said Senate Majority Whip John Thune (RS.D.). “The calculation in this case was probably a bit different than it was before.”
With their majority in jeopardy and Trump now an underdog in his re-election campaign, it could be years before Republicans can put another seal on the High Court. But maybe they don’t need it: they’ve had a conservative majority for maybe decades. And Republicans are confident that Barrett will be a right-wing majority maker who doesn’t stray from the conservative line like some other justices appointed by Republican presidents.
Still, there was plenty of behind-the-scenes maneuvering in the days following Ginsburg’s death. Lagoa, for his part, had emerged as a potentially more mainstream alternative to Barrett.
Sen. Marco Rubio (R-Fla.) appealed to Trump on Lagoa’s behalf and Trump responded that he “heard great things about him and loved him very much,” Rubio recounted. But the Court of Appeal judge also considered it a gamble.
“Lagoa is an excellent judge, but no real paper trail, no real idea of what she would do even as a circuit judge,” said a person familiar with the nomination process. “Amy had three years under her belt. It seemed like the White House was running around trying to do something other than Amy.
Sen. Josh Hawley (R-Mo.) had promised he would only support a Supreme Court nominee who understands “that Roe was the wrong choice.” Two days after Ginsburg’s death, Hawley raised concerns with Cipollone about Lagoa’s lack of a file on Roe, raising the prospect of a difficult confirmation hearing.
“I’m not asking you to confirm or deny whether these are the two final contenders. But I’ll just tell you right now, if it’s Barbara Lagoa… my problem with her is that I don’t see anything when it comes to Roe,” Hawley told Cipollone de Lagoa and Barrett.
Trump offered Barrett the job a day later, just three days after Ginsburg’s death. Another question remained for the GOP: should confirmation be stuck before the presidential election?
Sen. Mike Lee (R-Utah) immediately began calling colleagues after Ginsburg passed away about their favorite moment. Lee preferred to confirm her before the election; he found much agreement.
“I haven’t seen a lot of debate within the conference,” Lee said in an interview.
But despite the lightning-quick vote, confirming Barrett to the Supreme Court took years.
Former White House attorney Don McGahn played a key role in promoting Barrett’s nomination to the 7th Circuit Court of Appeals, and even attended his confirmation hearing and swearing-in .
Barrett has particularly impressed conservatives with her handling of questions about her Catholic faith from Sen. Dianne Feinstein (D-California), who told a 2017 hearing that “dogma lives strong in you.”
“Because of the skill and poise with which she responded, I think that may have been one of the moments that made people start considering her as a Supreme Court nominee,” recalled Lee. “She would have been fully justified in responding much more angrily than she did.”
Shortly after her confirmation at the appeals court, Barrett was added to Trump’s Supreme Court shortlist and she was widely considered Supreme Court Justice Brett Kavanaugh’s runner-up in 2018.
Trump at the time made it clear to several people that he would save Barrett for a possible vacancy at Ginsburg, according to Leonard Leo, the former executive vice president of the Federalist Society who played a key role in advising candidates from Trump.
But at the time, Trump’s sentiment seemed somewhat removed from reality on Capitol Hill. Barrett’s personal opposition to abortion rights would likely lose Collins and Lisa Murkowski (R-Alaska), it was thought, dividing the party on one of the few unifying priorities: judges.
Still, the arrival of Hawley and other conservatives on the Judiciary Committee as well as the departure of Trump critic Jeff Flake (R-Arizona) set the stage for Barrett’s rise. Hawley was emblematic of how quickly the party had changed.
He had spent a year and a half on the warpath against what he saw as a spongy vetting of the party’s judicial nominees, starting in 2019 with Neomi Rao, a DC Circuit Court nominee who was considered with suspicion by anti-abortion groups. Eventually, Rao was confirmed with Hawley’s backing, but conservatives warned that if she were chosen for the Supreme Court, it would be an entirely different situation.
Over the summer, Cipollone asked Leo about Rao during a call. Leo responded that if she was on Trump’s next list of potential Supreme Court picks, she could be attacked by some conservatives and it might not be good for her or the president, according to a person close to the White House.
The list released in September 2020 included Hawley’s name, as well as Sens. Ted Cruz (R-Texas) and Tom Cotton (R-Ark.). One name in particular was not on the list: Rao.
Even after Barrett’s nomination, some Republicans were still uncomfortable emphasizing his personal conservative views on social issues, particularly his opposition to abortion. In their fight against Barrett, Democrats warned she could overturn Roe’s landmark decision if upheld.
Throughout her confirmation process, Republicans have insisted that Barrett can separate her personal opinions from her legal rulings, though most have avoided talking about how she might adjudicate abortion cases. Sen. Lindsey Graham (RS.C.) even approached Hawley in the Senate and urged him to focus on legalese “substantive due process as legal process” as an alternative to abortion.
Hawley was unconvinced.
“I want to try to do my part for people to be openly pro-life, openly criticize Roe, be a religious conservative,” Hawley said in an interview. “I think it’s okay. You don’t have to hide it.”
And as she neared confirmation, most Republicans didn’t fear her anti-abortion stance — they embraced it. Now embroiled in a tough race for re-election, Graham saw the issue as a cudgel to use against his opponent.
“This is the first time in American history that we’ve named a woman who is staunchly pro-life,” Graham said during Barrett’s confirmation hearing. “And she’s going to court.”
During those hearings, Barrett frustrated Democrats by refusing to answer questions about the Affordable Care Act, abortion, or the upcoming election. But even under normal circumstances, his conservative views would have been too much for all but perhaps one or two Democratic senators.
In the end, even Murkowski was swayed, perhaps the most shocking event of the entire confirmation process. She had opposed confirming a Supreme Court justice so close to the presidential election, but said Saturday she did not hold it against Barrett, who she said had “navigated the gauntlet with grace, competence and humility”.
“Political consultants always try to say, ‘I did this and I did that and I have to take credit for it.’ That’s how they make a living,” said Judiciary Committee member Sen. John Kennedy (R-La.). “Judge Barrett won this one.”
John Bresnahan and Meridith McGraw contributed to this report.