Abortion rights have not been the focus of interviews with Supreme Court candidates or internal White House debates about whom to nominate, says a key adviser to President Donald Trump who claims each of the four finalists would be confirmed by the Senate.
On the latter point, Leonard Leo, an executive with the conservative Federalist Society who is advising Trump on his second high court pick, broke with Senate Majority Leader Mitch McConnell. The Kentucky Republican reportedly told Trump and White House counsel Donald McGahn last week that Judges Thomas Hardiman and Raymond Kethledge could be confirmed more easily than Judges Brett Kavanaugh and Amy Coney Barrett.
But Leo said Monday morning, about 12 hours before Trump is slated to reveal his pick in a prime-time East Room ceremony at the White House, that “all are confirmable in the Senate.”
“I think the path to confirmation for any of the final four is not a problem,” he told CNN.
As a presidential candidate, Trump often primed rally audiences and went further on debate stages than his GOP opponents by declaring he would put firmly anti-abortion justices on the land’s highest bench.
Now, mindful that moderate Maine GOP Sen. Susan Collins already has called landmark abortion rights-granting case Roe v. Wade a “settled” matter, White House officials have been eager to knock down the notion that the president is looking for a nominee who would, if confirmed, help the Supreme Court’s other four conservative justices nix that 1973 decision. Eighteen states have automatic triggers in place that would roll back abortion rights inside their borders if Roe is ever overturned, raising the stakes for Trump’s selection.
“All I can tell you is the process I’ve seen. And the president hasn’t asked any such questions,” Leo said Monday morning. “Lots of presidents before him have said these kinds of things — on both sides of the aisle.”
Leo and others advising Trump describe a process that has largely been about finding a nominee with a solid record of viewing laws strictly rather than, as activists on both sides have said about judges of other political leanings, making new policies via their decisions.
“At the end of the day, what matters is a judge’s record,” Leo said. “And what makes a judge the most fair and courageous and impartial is the idea that he interprets the law as written.”
“And that’s what the president’s talked about, as well. He wants judges who are going to enforce and respect the limits on government power contained in the Constitution,” he added. “The process hasn’t been about abortion. ... Those questions haven’t been asked.”
Barrett is considered the favorite of social conservatives, including pro-life activists. She has discussed her opposition to abortion before — which is based in her Catholic beliefs — but promised senators last year during her confirmation hearing for the 7th U.S. Circuit Court of Appeals that her religious beliefs would not color her decisions.
That could lead Collins, and perhaps other moderate Republicans, to oppose a Barrett nomination. Another potential sticking point for her is conservatives’ insistence that Trump’s pick respect previous decisions; Barrett has expressed a willingness to go against legal precedent.
“One of the really important things when evaluating potential members of the bench is make sure they have respect for precedent,” Leo said, adding “all” four have a record of doing so.
Pressed on Barrett, he contended that “she’s shown tremendous respect and deference for precedent. She’s struggled with … when you overturn precedent and when you don’t.”
Trump is scheduled to make his pick known at 9 p.m. EDT. Last year, he had now-Supreme Court Justice Neil Gorsuch sneak into the White House and hide in the Lincoln Bedroom before announcing the pick from the East Room, with Gorsuch and his wife entering from an anteroom door. That announcement had all the drama of a reality television show, and Trump, the former “Apprentice” host and executive producer, is expected to oversee the same kind of made-for-television event Monday night.
I have long heard that the most important decision a U.S. President can make is the selection of a Supreme Court Justice - Will be announced tonight at 9:00 P.M.— Donald J. Trump (@realDonaldTrump) July 9, 2018
The president on Sunday afternoon, as he was returning to the White House from his New Jersey golf resort, indicated he was still choosing from the four finalists.
“Let’s say it’s the four people. But they’re excellent. Every one. You can’t go wrong,” he said at Joint Base Andrews after exiting Air Force One. “But I’m getting very close to making a final decision. … I’ll probably be decided tonight or tomorrow, sometime by 12 o’clock.”
If that timeline holds, Vice President Mike Pence would be among the first to know who Trump will nominate. The two are scheduled to have a private lunch meeting.
Correction 12:20 p.m. | An earlier version of this story misstated the date Leonard Leo spoke to CNN.
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