As Donald Trump was considering who should succeed Justice Anthony Kennedy on the Supreme Court in the summer of 2018, he met for lunch with Sean Hannity and Rudy Giuliani at his private golf club in West Palm Beach. According to a source briefed on the conversation, Hannity and Giuliani argued that Trump should nominate Amy Coney Barrett, a federal appeals court judge and Notre Dame law professor, because her conservative credentials would mobilize the president’s base. “Hannity and Rudy said, ‘You’re going to have a confirmation fight anyways, so pick Barrett,’” the source said. Trump told them he was going to pick Brett Kavanaugh, whom he viewed as a safer choice.
With 43 days left until the election, Trump is itching for a fight as he moves quickly to fill Ruth Bader Ginsburg’s seat. “This nomination is a fuck-you to the left,” a Republican close to the White House told me. Two years later Barrett is the front-runner. According to a source, Trump told Federalist Society cochairman Leonard Leo prior to Ginsburg’s death that he would nominate Barrett to fill her seat if it opened up. The White House did not provide comment.
Barrett’s divisive positions on issues like abortion, which held her back last time, could now be seized upon to goad the left into a culture-war battle in the campaign’s waning months. “It would be malpractice not to nominate Barrett,” former Trump adviser Sam Nunberg told me. “You’ll have a Catholic judicial legal powerhouse who will be attacked by the left,” he said. “This will be especially useful in Pennsylvania to remind Catholic voters that [Joe Biden] supports third-term abortions.” (Biden, also a Catholic, “has not explicitly expressed support for late-term abortions,” notes NPR.) Other sources, however, said Trump is strongly considering Barbara Lagoa, a Cuban-American federal appeals court judge from Florida. Lagoa, it’s believed, would help secure a Florida victory in November.
The SCOTUS drama has infused the Trump campaign with renewed optimism after it has been battered by weeks of devastating book bombshells, widening polls, and a U.S. coronavirus death toll nearing 200,000. Just one day after Ginsburg’s death, the MAGA faithful were chanting, “Fill that seat!” at Trump’s North Carolina rally—and the campaign is already selling T-shirts with the slogan. Sources said Trump sees selecting Ginsburg’s replacement as if he is scripting a new story line in the reality show he’s producing. “I guarantee you he parades female judges through the White House every day for the next week,” a former official said. “This is his thing. He loves the nomination guessing game.”
Some Republicans I spoke to even likened the Ginsburg shocker to Jim Comey reopening the Hillary Clinton email investigation: a black swan event that fundamentally altered the trajectory of the race. “This is a game changer. It just changed the calculus for any conservatives who were on the fence voting for Trump,” a former West Wing official told me. “There’s a long way to go, and there has to be another shoe to drop, but the Supreme Court development is a good one,” said a prominent Republican.
There is an element of magical thinking to this rosy view of the race. Biden remains solidly ahead in every credible poll, both nationally and in key battleground states, as early voting is underway in Virginia, Minnesota, and elsewhere. But some echoes of 2016 are impossible to ignore. Trump’s willingness to violate social distancing rules and repeat lies on an epic scale has allowed his rallies and outrageous remarks to dominate the news cycle. Meanwhile, Biden is running a cautious campaign that seems willing to let Trump command the media’s attention. As he barnstorms the country, Trump is putting little effort into readying himself for next week’s debate moderated by Chris Wallace. Sources said Trump is having occasional conversations with chief strategist Jason Miller and former New Jersey governor Chris Christie. “Basically what happens is they sit around and throw questions at Trump. But Trump just kind of does his thing,” the former West Wing official said. Added another Republican source: “Trump is just not taking it seriously.”
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