Democrats have little chance to block the nominee, but a bitter Senate battle looms in the weeks ahead of the Nov. 3 election, the results of which Trump has said may end up before the high court.
Barrett’s confirmation would replace a liberal icon with a deeply conservative jurist whose views suggest she might vote to further limit abortion rights, an issue that animates conservative Republicans and evangelical voters.
Barrett, 48, could hold the lifetime seat for decades. She would join two other relatively young, deeply conservative jurists chosen for the high court by Trump. Trump’s first two appointments, Neil M. Gorsuch and Brett M. Kavanaugh, are in their 50s. The trio would represent one-third of the body and form a new 6-3 conservative majority.
The people familiar with the matter, who spoke on the condition of anonymity because the decision has not been announced, cautioned that Trump could always change his mind ahead of the announcement but said he is telling others that Barrett is his pick. She is the only candidate he is known to have met with about the vacancy. Administration officials and campaign advisers were preparing for a Barrett announcement, and remarks for the president disclosing her as his choice have already been written, according to these people.
The White House declined to comment.
Trump spoke to reporters briefly upon his return to Washington on Friday. He said he had made a decision but would not confirm that the choice was Barrett.
“I’ll be announcing it tomorrow, my decision,” he said. “In my own mind, I have, and I’ll be announcing the decision tomorrow. It’s very exciting.”
Trump gave a knowing smile as reporters asked about Barrett, whom he called “outstanding.”
“You’ll find out tomorrow,” he said.
Trump said he did not meet with Judge Barbara Lagoa of the U.S. Court of Appeals for the 11th Circuit during his overnight stay in Miami, where she lives. Lagoa was considered the other top choice.
Later Friday, Trump returned to the campaign trail with a rally in Newport News, Va., that was largely aimed at nearby voters in conservative northeastern North Carolina.
Trump drew applause when he said Democrats’ objections are disingenuous and predicted that his nominee will be approved either before or after the election.
“The Democrats are saying, ‘Well, it’s the end of the term,’ ” Trump said. “ . . . You know, we have a lot of time left.”
“Think of this. If it were them,” Trump said, breaking off as the crowd cheered.
Trump has urged the Senate to act swiftly in hope that his nominee will be confirmed before Election Day, an extraordinarily fast timeline and a mark of how Trump plans to use the prospect of an ironclad conservative majority as an election issue.
Barrett is a favorite of religious conservatives and is already battle-tested after going through a ferocious confirmation fight in 2017 for her seat on the U.S. Court of Appeals for the 7th Circuit. She was confirmed on a 55-to-43 vote.
Republicans also hope that for moderates such as Sen. Susan Collins (R-Maine), her gender will make her a more palatable replacement for Ginsburg, a feminist icon who devoted her legal career to gender equality. Trump had said he would consider only women to fill the seat and quickly narrowed the list to Barrett and a handful of others.
Trump considered Barrett in 2018 to replace Justice Anthony M. Kennedy, who was retiring. This time, she was the favorite among several Trump advisers, including White House Chief of Staff Mark Meadows and Vice President Pence.
Barrett is a devout Catholic who faced questions about the role of her religion in her legal philosophy during her appeals court confirmation hearing. She said then that as an appellate judge she would “follow all Supreme Court precedent without fail” and would regard decisions such as Roe v. Wade as binding precedent.
“I would never impose my own personal convictions upon the law,” she added.
Democrats pointed to comments she had made years before about a legal career being a means to an end, “and that end is building the Kingdom of God.”
She had also previously written that judges shouldn’t be held to upholding Supreme Court precedents.
Other candidates for the high court vacancy included Judge Allison Jones Rushing of the U.S. Court of Appeals for the 4th Circuit and Deputy White House Counsel Kate Comerford Todd.
Trump’s reelection rallies have featured chants of “Fill that seat,” an echo of his 2016 campaign slogan “Build that wall,” and his campaign offered T-shirts with the Supreme Court-themed slogan to donors days after Ginsburg’s death.
Democrats have complained about the fairness of making such a replacement when voting in the presidential election already has begun. They call Republicans hypocrites for refusing to hold a confirmation vote in 2016 when President Barack Obama sought to fill the seat of Justice Antonin Scalia upon his death in that election year.
Democrats are hoping to use the pick to mobilize liberal and swing voters by focusing on the implications of a more conservative court for issues such as health care. The high court is set to hear oral arguments on the latest bid to strike down the Affordable Care Act — a suit brought by 18 Republican states that is backed by the Trump administration — on Nov. 10, one week after the election. Republicans have offered no plan for replacing the law, which extended health insurance to some 20 million Americans.
They also hope to convince voters that the pick is being rushed and that whoever wins the presidential election should pick Ginsburg’s replacement.
A majority of Americans oppose efforts by Trump and the Republican-led Senate to fill the vacancy before the election, with most supporters of Democratic nominee Joe Biden saying the issue has raised the stakes of the election, according to a Washington Post-ABC News poll released Friday. The poll, conducted Monday to Thursday, found that 38 percent of Americans say the replacement for Ginsburg, who died last week, should be nominated by Trump and confirmed by the current Senate, while 57 percent say it should be left to the winner of the presidential election and a Senate vote next year.
Republicans plan to move to confirm Trump’s pick as quickly as possible.
Senate Majority Leader Mitch McConnell (R-Ky.) began mobilizing his ranks last week to confirm whomever Trump chose. Only two GOP senators — Collins and Lisa Murkowski (Alaska) — have said they oppose voting on Trump’s pick before Nov. 3, while GOP support has only grown for Trump’s public demand for Senate Republicans to hold a vote by then.
Democrats have argued that the Senate has never confirmed a nominee to the Supreme Court between July and Election Day in a presidential year, but they currently lack the votes to stop hearings and a vote in the Republican-led Senate.
Trump appeared to have secured the votes needed to confirm his nominee days before he even named a candidate, and the White House predicts Republicans will stick together.
Abortion, access to health care, gun rights and the death penalty are all issues that are or may again soon be before the high court.
Ginsburg’s sudden death jolted the presidential race, making a theoretical question about Trump’s second-term options an issue in his reelection fight. Trump trails Biden in national and some swing-state polls with fewer than 40 days until Election Day.
Trump has directly tied the confirmation of a Supreme Court justice to the presidential election, predicting Wednesday that cases challenging the results would end up before the nation’s high court.
“I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices,” Trump said when asked if he felt an urgency to fill the seat before the election because of the possibility of lawsuits around voting.
The court’s term begins Oct. 5. The court can meet with only eight justices, but the even number raises the possibility of a tie if emergency election-related challenges come to the court.
The current eight include three liberals, who with Ginsburg could sometimes prevail over the four-member deeply conservative wing with the help of Chief Justice John G. Roberts Jr., a more moderate conservative. Roberts’s improbable role of swing vote would likely end with this confirmation, court observers expect.
Trump, who has warned baselessly of voter fraud and corruption in the upcoming election, said he wants his nominee confirmed so she can rule on any legal challenges to the presidential election results.
“It’s better if you go before the election, because I think this, this scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court,” he said. “And I think having a 4-4 situation is not a good situation.”
The “scam” Trump claims is happening refers to the decision by states to allow most Americans the option to vote by mail in the face of the coronavirus pandemic, when people might be scared to vote in person. There is no evidence that mailing in ballots will lead to the kind of widespread corruption Trump has suggested.
Trump said an election case that goes before the Supreme Court should get a vote of “eight-nothing or nine-nothing.”
“But just in case it would be more political than it should be, I think it’s very important to have a ninth justice,” he said.
Trump has told advisers that he relishes a fight over the seat because it changes the topic of the campaign from the pandemic and shows voters he is fighting for them, and that he believes Democrats will overplay their hand.
Ginsburg served 27 years on the high court before her death last week at 87, of complications from cancer.
As a lawyer in the 1970s, Ginsburg argued six cases before the Supreme Court, helping to chip away and eventually topple the legal wall of gender inequality. At a commemoration at the high court on Wednesday, Roberts noted that she wrote 483 opinions and dissents in her tenure, a legacy that will “steer the court for decades.”
Ginsburg’s body lay in repose at the court Wednesday and Thursday and lay in state at the Capitol on Friday. She is to be buried Sunday at Arlington National Cemetery, alongside her husband, Martin D. Ginsburg, who died in 2010.