I’m out on a limb on this since Barrett is the only one of the four finalists who hasn’t been touted as a frontrunner in the past few days. Allegedly Trump was hinting last week that it’d be Kavanaugh. Then Kethledge seemed to experience a boomlet, rising to “leading contender” by some accounts. Then suddenly the dark horse, Tom Hardiman, was making a move on the inside track yesterday afternoon. And Barrett, alone among the four, allegedly had a bad interview with Trump, a guy who prizes “personal chemistry” even when it makes zero sense to do so, as with Supreme Court appointments.
So why gamble on Barrett?
For starters, I refuse to believe the Hardiman thing is real. It’s either misdirection by a president who likes to stage-manage his announcements for suspense or it’s fleeting frustration with the fact that there are arguments against the three other “stronger” contenders. Trump has two big problems with nominating Hardiman. One, it won’t make anyone in his base particularly happy. Hardiman might be another Alito on the bench — a good thing — but he also might be another Kennedy. And no one expects him to become a Scalia-esque leader of the Court’s conservative wing, which is what righties are hoping for.
More importantly, though, if Trump opts for Hardiman he owns that pick completely. If he chooses Kavanaugh, Barrett, or Kethledge and the nominee disappoints him on a major decision, he can always pass the buck: “My stupid egghead legal advisors at the Federalist Society totally blew it!” No one at the FedSoc is pushing Hardiman over the other three, though. He’s on Trump’s radar because Trump’s sister is a friend and colleague of his. If Trump ignores his advisors to go with him and then Hardiman proves disappointing, that’s on Trump and Trump alone. And it would significantly dilute the power of his pitch to Trump-skeptic righties in 2020 that they should turn out and vote for him if only to keep the sterling SCOTUS picks going.
As for why Barrett over Kavanaugh or Kethledge, Trump’s instinct when told that he can’t do something is to do it. And Barrett is the one pick more than any other about whom he’s being told “You can’t do that!” She’s too pro-life! Collins and Murkowski will walk! Official Washington much prefers Kavanaugh or Kethledge! I think Trump processes advice like that in terms of “You don’t have the balls to do this.” It’s like waving a red cape in front of a bull. More than that, though, Barrett is very clearly the choice that’ll make his base happiest and galvanize them for a big chair-throwing culture-war brawl with the left. Kethledge is getting knocked by the right for his immigration votes, Kavanaugh is getting bashed for being a Bushie, but Barrett seems to be viewed as some sort of conquering white knight of social conservatism. I think that’s foolhardy: She’s far less of a known quantity as a judge than Kavanaugh or Kethledge are and might well disappoint conservatives in all sorts of ways over the next 40 years on the Court. (Although, crucially, probably not on abortion.) It’d be wiser to give her five years on the bench and then see where things stand.
But Republicans don’t necessarily have five years to play with. By far the stupidest argument in support of passing over Barrett this time is that Trump can save her for the eventual Ginsburg vacancy. Trump may be out of office in as little as two and a half years, though. There’s every reason to think Ginsburg can hang on until then. And if she does, it might plausibly be another full decade before a Republican president gets to fill a Court seat. If so, at 56, Barrett will be starting to edge out of the age window for likely Court nominees. Also, as Ross Douthat noted yesterday, it makes little sense politically to save Barrett for the Ginsburg seat even if there were a guarantee that Republicans would get to fill it. Replacing Kennedy with Barrett won’t shift the Court dramatically further right; replacing Ginsburg with her obviously would, which would make the cultural and political battle that much more wrenching. If Trump’s going to appoint someone who might be more tolerable to Democrats (like the low-key Hardiman), doing it with the Ginsburg vacancy makes more sense than doing it now.
The big knock against Barrett is that she can’t get confirmed. Collins and Murkowski allegedly will choke on her strong pro-life stance and walk. Trump should dare them to do it and make an enemy of the right forever. More to the point, he should dare Joe Manchin, Heidi Heitkamp, Joe Donnelly, Jon Tester, Claire McCaskill, Doug Jones, and Bill Nelson to do it — every day, by name, on Twitter. Trump needs to keep red-state Democrats in the spotlight on this relentlessly; if he doesn’t, they’ll hide behind Collins and Murky and vote however they do, expecting if the nomination goes down that the two centrist Republicans will bear the brunt of the backlash. Trump can’t let that happen. If I were him, I’d ignore Collins and Murkowski entirely and treat those seven Democrats as de facto independents for confirmation purposes, hammering the message that the nominee’s fate is in their hands alone. The only way to equalize the intense pressure they’ll be getting from the left to vote no is with a presidential bullhorn aimed straight at their red-state constituents, every day from now to the confirmation vote. If the pressure gets intense enough, maybe — probably not, but maybe — Manchin and another Dem would panic and vote yes even if the two Republicans vote no. And if they don’t, making a public spectacle out of them will make their defeats in November more likely.
All Trump needs is two yays out of the nine senators I just named. Can he and McConnell get two for the first Republican woman nominee since Sandra Day O’Connor, whose Catholicism is destined to be demagogued in ugly ways by the left over the next few months? Like I say, when you tell him he can’t do something, that’s when he wants to try. My money’s on Barrett.