(C) Reuters. People gather to mourn the death of Associate Justice Ruth Bader Ginsburg at the Supreme Court in Washington
By Lawrence Hurley and Steve Holland
WASHINGTON (Reuters) – President Donald Trump on Saturday named two conservative women who he has elevated to federal appeals courts as contenders to fill the U.S. Supreme Court vacancy caused by Ruth Bader Ginsburg’s death, a move that would tip the court further to the right.
Trump, who now has a chance to nominate a third justice to a lifetime appointment on the court named Amy Coney Barrett of the Chicago-based 7th Circuit and Barbara Lagoa of the Atlanta-based 11th Circuit as possible nominees.
Ginsburg’s death on Friday from cancer after 27 years on the court handed Trump, who is seeking re-election on Nov. 3, the opportunity to expand its conservative majority to 6-3 at a time of a gaping political divide in America.
“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” Trump said on Twitter. “We have this obligation, without delay!”
Any nomination would require approval in the Senate, where Trump’s Republicans hold a 53-47 majority.
Not all Republican senators supported the move: Maine’s Susan Collins on Saturday said Trump should hold off on nominating.
“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins, facing a tough re-election race herself, said on Twitter.
Democrats are still seething over the Republican Senate’s refusal to act on Democratic President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016 after conservative Justice Antonin Scalia died 10 months before that election. Senate Majority Leader Mitch McConnell said then that the Senate should not act on a court nominee during an election year, a stance he has since reversed.
Even if Democrats win the White House and a Senate majority in the November election, Trump and McConnell have time as the full new Congress would not be sworn in until Jan. 3
Senior congressional Democrats raised the prospect of adding additional justices next year to counterbalance Trump’s nominees if they win control of the White House and Senate in the November election.
McConnell, who has made confirmation of Trump’s federal judicial nominees a top priority, said the chamber would vote on any Trump nominee.
Given that they have few tools to block the eventual nomination from passing, Democrats plan to try to rally public opposition to the move.
“The focus needs to be showing the public what’s at stake in this fight. And what’s at stake is really people’s access to affordable healthcare, workers’ rights and women’s rights,” said Democratic Senator Chris Van Hollen in a telephone interview.
Obama himself on Saturday called on Senate Republicans to honor what he called that “invented” 2016 principle.
“A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” Obama said in a statement posted online.
AMY CONEY BARRETT AND BARBARA LAGOA
Even before Ginsburg’s death, Trump had made public a list of potential nominees.
Barrett has generated perhaps the most interest in conservative circles. A devout Roman Catholic, she was a legal scholar at Notre Dame Law School in Indiana before Trump appointed her to the 7th Circuit in 2017. A Barrett nomination would likely ignite controversy, as her strong conservative religious views have prompted abortion-rights groups to say that if confirmed by the U.S. Senate, she would likely vote to overturn the landmark 1973 Roe v. Wade Supreme Court decision that legalized abortion nationwide.
Lagoa has served on the 11th U.S. Circuit Court of Appeals for less than a year after being appointed by Trump and confirmed by the Senate on an 80-15 vote. Prior to that she also spent less than a year in her previous position as the first Latina to serve on the Florida Supreme Court. She previously spent more than a decade as a judge on an intermediate appeals court in Florida.
Another candidate Trump has considered previously is Amul Thapar. He was a district court judge in Kentucky – the first federal judge of South Asian descent – before Trump appointed him to the Cincinnati-based 6th Circuit in 2017.
Conservative activists for years have sought to get enough votes on the Supreme Court to overturn Roe v. Wade. During the 2016 campaign, Trump promised to appoint justices who would overturn that decision. But the court in July, even with its conservative majority, struck down a restrictive Louisiana abortion law on a 5-4 vote.
The two justices already appointed by Trump were Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Kavanaugh’s confirmation process was particularly heated, as he faced accusations by a California university professor, Christine Blasey Ford, that he had sexually assaulted her in 1982 when the two were high school students in Maryland. Kavanaugh angrily denied those accusations and was narrowly confirmed.
Republicans risk the possibility of liberals embracing more radical proposals should Trump replace Ginsburg but Democrats win November’s election, with some activists on the left suggesting even before Ginsburg’s death that the number of justices on the court should be expanded to counter Trump’s appointees.
“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Senate Minority Leader Chuck Schumer told fellow Democrats on a Saturday conference call, according to a source who listened to the call.
House of Representatives Judiciary Committee Chairman Jerrold Nadler on Saturday said that rushing a court pick through the Senate if Democrats win in November would be “undemocratic.”
He said in a Twitter post that doing so would mean “Congress would have to act and expanding the court would be the right place to start.”
Confirmation votes could also put more pressure on incumbent Republican senators in competitive election races, including Collins and Arizona’s Martha McSally, at a time when Democrats are eying a chance to win control of that chamber. Senator Lisa Murkowski of Alaska, who is not up for re-election this cycle, also could play a pivotal role.
She told local media on Friday, prior to Ginsburg’s death, that she would not vote for a Supreme Court nominee so close to the election.