How can Donald Trump best indemnify himself against political attacks over his upcoming Supreme Court nomination? Some conservatives concerned about the optics of replacing Anthony Kennedy, the center square on abortion issues for the last generation, have a strategy in mind, reports Politico’s Josh Gerstein. And that’s to play a little identity politics with the party that usually masters it:
No matter whom President Donald Trump picks for the Supreme Court this time around, the nominee is almost certain to come under withering liberal attack as a grave threat to women’s rights. Several conservatives close to the White House, however, say they know just how to blunt that looming assault: Pick a woman for the job.
With Roe v. Wade appearing to hang in the balance, the battle to replace Justice Anthony Kennedy will be an order of magnitude more intense than the fight last year over filling the seat left vacant after the death of Justice Antonin Scalia. Choosing a female nominee could turn down some of the heat on the abortion issue, give some political cover to female Republican senators like Susan Collins and Lisa Murkowski, and complicate the imagery in TV ads that are expected to savage the nominee, whoever he — or she — may be.
“I think the optics do matter. It’s harder to make the case that a woman is against women’s rights,” said Curt Levey of the conservative Committee for Justice, a veteran of several Supreme Court fights. “It takes on special significance when people expect abortion to probably be the biggest issue. … I think it’s given even more significance by the fact the two most moderate Republican senators are women.”
Would that be a pander? Sure, but no more of a pander than choosing from an ideologically safe set of nominees. If Mitch McConnell had 55 Republican votes, Trump could keep that strategy in his back pocket for use if one of the female justices leave the court during his term in office. As it is, though, he’ll need to use all the tools at his disposal.
That might not go over well with Trump’s base, given their distaste for the same kind of identity politics deployed by Trump’s erstwhile opponent in the 2016 election. The Trump campaign and Republicans argued — with some justification — that Hillary Clinton’s incessant identity politics alienated voters and cast her as the “entitled” candidate. Going full tilt on identity politics to support a SCOTUS nominee would open Trump up to the same kind of criticism … not that consistency is a value embraced by either side of the political spectrum these days.
However, Trump does have a number of highly qualified women on his long list from the campaign. The only woman on the reported short list, Amy Coney Barrett, might prove a little too problematic for this strategy to work, although as I noted yesterday it might open up other lines of attack for Trump and Republicans:
If Trump wants a nominee to “own the libs,” then Barrett’s his best choice. It would certainly give Senate Democrats another opportunity to offend tens of millions of Catholic voters in the run-up to the midterms, a potential that shouldn’t be overlooked. Barrett, however, might put the nomination afoul of Susan Collins and Lisa Murkowski, the two pro-choice Republicans who derailed the ObamaCare repeal over the defunding of Planned Parenthood. Trump has other choices available to him that have a better chance of winning all 50 Republicans in the Senate. He took that seriously enough with Gorsuch, and he’s probably inclined to take it seriously now.
Gerstein, an astute legal observer, reports from his White House sources that Barrett is under serious consideration, as is Allison Eid from the 6th Circuit. Like Barrett, Eid took her spot on the federal appellate bench in November of last year. Her confirmation was significantly less contentious, although she only got a 56-41 for confirmation anyway. Eid clerked for Clarence Thomas before entering into private practice and eventually serving eleven years on the Colorado Supreme Court. At 53, Eid is also young enough to have a lasting impact on the court.
But I’m still curious why Margaret Ryan’s name hasn’t been more of a factor in the public discussion. She has served almost 12 years on the Armed Services Court of Appeals, and is only 54 years old. Ryan served in the Marine Corps in two separate tours, and then went on to clerk for conservative jurist Michael Luttig and then Clarence Thomas as well. Ryan won confirmation by unanimous affirmation in 2006, when the judicial-confirmation wars slacked up a bit. Putting a veteran on the court will check a very important constituency for Trump that has little to do with gender, too.
There are several very good candidates to replace Kennedy, regardless of gender. Politics being what they are, though, don’t be surprised if Trump follows that advice, and don’t expect it to buffer the personal attacks for very long if he does.