When President Trump's political obituary is written, you can bet the decision he makes Monday about a Supreme Court justice will be pretty high up. The person Trump will nominate at 9 p.m. is in line to create a clear 5-to-4 conservative majority on the nation's highest court.
But much like his entire presidency, there are no assurances it will go smoothly. Trump will nominate a justice who could set the course of the country for years and decades to come — for good or ill, depending upon your viewpoint — but a late development this weekend reinforces that the decision isn't destined to be a home run.
Trump said Sunday that his pick was down to four people — apparently re-adding 2017 runner-up Thomas Hardiman to the reported final three of Brett Kavanaugh, Amy Coney Barrett and Raymond Kethledge. Kavanaugh and Barrett have been thought to be the two front-runners, but some conservatives have balked at Kavanaugh and others have worried that Barrett could risk what should be a successful nomination.
Which is where Senate Majority Leader Mitch McConnell (R-Ky.) comes in. As the New York Times first reported and The Washington Post has confirmed, McConnell spoke to Trump on Friday and raised that prospect that either Kavanaugh or Barrett could unnecessarily jeopardize an expeditious confirmation of the new justice.
In the case of Kavanaugh, it's because he has spent the past couple of decades as an appeals court judge, a top Bush administration official and a lawyer on Kenneth Starr's team during the Bill Clinton scandal, leading to a paper trail that could take a very long time to sort through — and could potentially spring some surprises. Kavanaugh also notably might struggle to win the support of Sen. Rand Paul (R-Ky.).
In the case of Barrett, it's because she is seen as the most antagonistic toward Roe v. Wade and could feasibly lose the support of pro-abortion-rights Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), either of whom could doom Barrett's nomination if no Democrats cross over.
The Post's Robert Costa and Robert Barnes conclude:
The officials underscored that McConnell did not push any choice on the president. But, they said, McConnell did note that Hardiman and Kethledge could fare well in the Senate because their reputations and records were not as politically charged as others on the president’s shortlist of nominees.
Regardless of whether McConnell actually urged the president to make a specific decision, it's pretty clear what his goal is: To make sure the Senate is able to confirm somebody. And that could be compelling for a few reasons. First is the GOP's narrow majority, which is effectively 50-49 with Sen. John McCain (R-Ariz.) battling brain cancer. The second is the lack of time to get this done before Democrats could possibly take over the Senate in November's election, which means there's urgency to get this right on the first pick. And third is Trump's lack of ideological rigidity and his desire for “wins.”
Trump has provided plenty of reason for skepticism that he actually cares about whether Roe is overturned or how consistently conservative the new justice will be. The president may have some ideological convictions, but abortion isn't one of them. His track record — and regular gloating about Justice Neil M. Gorsuch — makes clear this is mostly about wins and about keeping the base intact.
And if the president is asking himself “What's the easiest win?” McConnell has given him the answer. Kethledge and Hardiman both carve pretty mild and even blue-collar profiles, and neither has stoked the passions of the GOP base enough to spawn full-fledged campaigns against them. While there can always be surprises, you have to think they have the best odds of winning confirmation and doing it fast. Kavanaugh and Barrett could both make the process more arduous than it perhaps needs to be. Trump loved how tidy Gorsuch's confirmation was, and it's not difficult seeing him wanting to do that again.
All of that said, this is Trump. Maybe he picks Barrett because it's the biggest base play. Maybe he picks Kavanaugh because he fits the mold of Trump's conception of a Supreme Court justice, Ivy League education and all. Maybe Trump is confident enough that any of them would be confirmed that he'll just pick the one he likes best. Certainly any of the four would be favored to join the court in a few months and give conservatives that 5-to-4 edge.
But McConnell thinks it was worth pointing in the direction of the easiest wins and avoiding unnecessary headaches. We'll see if Trump goes for the path of least resistance.