One day after Supreme Court Justice Ruth Bader Ginsburg died, President Donald Trump told Senate Majority Leader Mitch McConnell that “lots of people” thought Barbara Lagoa would be the best pick for the Supreme Court.
After all, the Cuban American judge from Florida could give a huge political boost to the president in a key swing state.
McConnell had a rebuttal: Pick Amy Coney Barrett instead, according to GOP leadership and White House aides. McConnell argued Barrett, an ardent social conservative, would have the best chance of uniting the party — and if Trump even thought of picking someone else, he needed to call McConnell and give him a chance to change the president’s mind.
The majority leader’s call with the president was sandwiched in between intense lobbying sessions with the president’s top aides on Sept. 19. Before speaking to Trump, McConnell told White House counsel Pat Cipollone and chief of staff Mark Meadows that Barrett had the strongest shot at confirmation. She was the “obvious” choice, McConnell said, even as Meadows quizzed him on Allison Jones Rushing, an appellate court judge.
On Monday, eight days before the presidential election, Barrett was confirmed. It’s a win not just for McConnell and Trump; it marks a sea change in how Republicans handle judicial nominees amid the decades-long war over abortion rights. Just two years ago, Barrett was seen as possibly too conservative to be confirmed by a narrow Republican Senate majority, and too hostile to Roe v. Wade. This time around, McConnell argued to the White House not to meet with anyone other than Barrett, according to the aides.
The shift comes after Republicans picked up two seats in the 2018 midterms along with a harder-right turn in the conference's center of gravity. Soon Barrett began climbing the charts among Republicans to the point that when Ginsburg died in late September, she seemed almost inevitable. This spring, McConnell and Andrew Ferguson, his chief counsel, began discussing who they might have fill Ginsburg’s vacancy if it arose in the waning weeks of Trump’s term. In that meeting, the GOP leader and his top staffers settled on Barrett, according to the leadership aide.
By the time she was confirmed 52-48, every Republican other than Maine Sen. Susan Collins voted for her, with Collins only expressing opposition to confirming a high court nominee in an election year. There wasn’t even much drama in the end.
“We did a lot of outreach to find out where people were, who they liked. And by the time this one became vacant, there were a lot of unsolicited [requests from senators]: ‘I want Barrett,’” said Senate Majority Whip John Thune (R-S.D.). “The calculus going into this was probably a little different than it was before.”
With their majority in danger and Trump now an underdog in his reelection campaign, it could be years before Republicans can put another stamp on the high court. But they might not need to: they’ve clinched a conservative majority for perhaps decades. And Republicans are confident that Barrett will be a rock-ribbed majority-maker for the right that does not deviate from the conservative line like some other justices appointed by Republican presidents.
Still, there was plenty of maneuvering behind the scenes in the days after Ginsburg’s death. Lagoa, for one, had surfaced 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 her and liked her a lot,” Rubio recounted. But the Appeals Court judge was also seen as a gamble.
“Lagoa is a great judge but just no real paper trail, no real sense 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 anything but Amy.”
Sen. Josh Hawley (R-Mo.) had pledged that he would only support a Supreme Court nominee that understands “that Roe was wrongly decided.” Two days after Ginsburg’s death, Hawley raised concerns to Cipollone about Lagoa’s lack of record on Roe, raising the prospect of a difficult confirmation hearing.
“I’m not asking you to confirm or deny if 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 said he told told Cipollone of Lagoa and Barrett.
Trump offered the job to Barrett one day later, just three days after Ginsburg’s death. One other question still remained for the GOP: should the confirmation be jammed in before the presidential election?
Sen. Mike Lee (R-Utah) immediately began to call his colleagues after Ginsburg’s passing about their preferred timing. Lee favored confirming her before the election; he found many agreed.
“I did not see a lot of debate occurring within the conference,” Lee said in an interview.
But despite the lightning quick vote, Barrett’s confirmation to the Supreme Court was years in the making.
Former White House Counsel Don McGahn played a key role in pushing Barrett’s nomination to the 7th Circuit Court of Appeals, and even attended her confirmation hearing and swearing in.
Barrett particularly impressed conservatives with her handling of questions about her Catholic faith from Sen. Dianne Feinstein (D-Calif.), who said at a 2017 hearing that “the dogma lives loudly within you.”
“Because of the skill and the aplomb with which she responded, I think that might have been one of the moments that caused people to start thinking of her as a Supreme Court nominee,” Lee recalled. “She would have been fully justified in responding much more angrily than she did.”
Shortly after her confirmation to the Appeals court, Barrett was added to Trump’s Supreme Court shortlist and she was widely viewed as the runner-up to Supreme Court Justice Brett Kavanaugh in 2018.
Trump at the time made it clear to several individuals that he would save Barrett for a potential Ginsburg vacancy, according to Leonard Leo, the former executive vice president of the Federalist Society who has played a key role in advising Trump’s nominees.
But at the time, Trump’s sentiment seemed somewhat divorced from reality on Capitol Hill. Barrett’s personal opposition to abortion rights would likely lose Collins and Lisa Murkowski (R-Alaska), the thinking went, dividing the party on one of the few unifying priorities: judges.
Yet the arrival of Hawley and other conservatives on the Judiciary Committee along with the departure of Trump critic Jeff Flake (R-Ariz.) set the stage for Barrett’s ascendance. Hawley was emblematic of how quickly the party had shifted.
He had spent a year and a half on the warpath against what he saw as squishy vetting of the party’s judicial nominees, beginning in 2019 with Neomi Rao, a nominee for the D.C. Circuit Court who was viewed with suspicion by anti-abortion groups. Eventually Rao was confirmed with Hawley’s support, but conservatives warned if she were picked for the Supreme Court it would be an entirely different situation.
Over the summer, Cipollone asked Leo about Rao in a call. Leo responded that if she were included on Trump’s next list of potential Supreme Court picks, she could be attacked by some conservatives and that may not be good for her or the president, according to an individual close to the White House.
The list released in September 2020 included Hawley’s name, along with Sens. Ted Cruz (R-Texas) and Tom Cotton (R-Ark.). One name was notably not on the list: Rao.
Even after Barrett was nominated there was still discomfort among some Republicans with emphasizing her conservative personal views on social issues, particularly her opposition to abortion. In their fight against Barrett, Democrats warned she could overturn the landmark Roe decision if confirmed.
Throughout her confirmation process, Republicans insisted Barrett could separate her personal views from her judicial decisions, though most avoided talking about how she might rule on abortion cases. Sen. Lindsey Graham (R-S.C.) even approached Hawley on the Senate floor and urged him to focus on the legalese “substantive due process as a legal process” as an alternative to abortion.
Hawley wasn’t persuaded.
“I want to try and do my part to make it okay for people to be openly pro-life to be openly critical of Roe, to be a religious conservative,” Hawley said in an interview. “I think that’s okay. You don't have to hide that.”
And by the time she was nearing confirmation, most Republicans weren’t shying away from her anti-abortion stance — they were embracing it. Now involved in a tough race for reelection, Graham saw the issue as a cudgel to use against his opponent.
“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life,” Graham said during Barrett’s confirmation hearing. “And she is going to the court.”
During those hearings, Barrett frustrated Democrats by declining to answer questions about the Affordable Care Act, abortion or the upcoming election. But even under normal circumstances, her 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 during the entire confirmation process. She had opposed confirming a Supreme Court justice so close to the presidential election, but said on Saturday that she didn’t hold it against Barrett, who she said had “navigated the gauntlet with grace, skill and humility.”
“Political consultants are always trying to say, ‘I did this and I did that and I should take credit.’ That’s how they earn their living,” said Sen. John Kennedy (R-La.), a member of the Judiciary Committee. “Judge Barrett won this one.”
John Bresnahan and Meridith McGraw contributed to this report.
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