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Could a woman be what Trump needs for SCOTUS?

Some conservatives say nominating a female justice may defuse a looming fight over abortion rights.

By JOSH GERSTEIN

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.”

Of the 25 people on Trump’s public list of potential nominees, six are women. Four — 10th Circuit Judge Allison Eid, 6th Circuit Judge Joan Larsen, Court of Appeals of the Armed Forces Judge Margaret Ryan and 7th Circuit Judge Diane Sykes — were on lists released during the 2016 presidential campaign. Two — 7th Circuit Judge Amy Barrett and Georgia Supreme Court Justice Britt Grant — were added last November.

Conservative activists in close touch with the White House sent conflicting signals Thursday about how many women are being seriously considered for the nomination.

One person familiar with White House thinking said officials were keen on picking a woman and were closely vetting Barrett and Eid.

Another Republican close to the White House said attention was focused on about five potential nominees, with Barrett as the only woman on that list.

More than a year ago, as Trump’s team was running the process that led to the selection of Neil Gorsuch to replace Scalia, a top adviser told POLITICO that the White House was considering whether a woman nominee would be a better fit.

As lawyers combed through possibilities for that first vacancy, the adviser said, they also asked: “Who are your better bets for seats that are going to be potentially more contentious?”

Leonard Leo, who recently took leave from the conservative Federalist Society to advise the White House on the nomination process, did not rule out that gender could play a role in Trump’s decision.

“I don’t think that given the current composition of the court it’s necessary to nominate a woman,” Leo told POLITICO on Thursday. “I really think this decision depends most heavily upon whether there is a female candidate who is really extraordinary. The relevant question would be: Are there female candidates who distinguish themselves in that way and fit very well within that Gorsuch model, perhaps better than male candidates?”

Leo also said he was confident that any effort to tar a female nominee as anti-woman would fall flat.

“If Democrats and the left choose to undertake that strategy in the face of a female nominee, I suspect they’re going to look rather foolish,” he said. “The interesting question is not whether that strategy could be overcome. The interesting question is whether anyone would be stupid enough to invoke it in the face of a serious female nominee.”

Another conservative legal activist, Carrie Severino of the Judicial Crisis Network, expressed similar doubts.

“It will be a little harder for them to make the case that this woman is anti-woman. … but Justice Thomas gets called a self-hating black man regularly,” said Severino, who clerked for Clarence Thomas. “Of course, this could have resonance with some people. But with other people they could become even more angry. … They’re going to say she’s a traitor to her gender.”

A liberal legal advocate, Caroline Fredrickson of the American Constitution Society, said she would not be surprised if Trump did select a woman as his nominee.

“The optics of Trump judicial nominees is bad so far, in that they’ve been overwhelmingly white and male,” Fredrickson said. “So, I think as a part of their communications strategy, they might think nominating a woman might cause people to believe he’s nominating someone more mainstream. … I think that would be misplaced, because the women on his shortlist are just as hard right as the men.”

Among conservative legal activists, Barrett seems to be the crowd favorite. Her public statements on Roe v. Wade and abortion rights, however, could add even more fuel to what is likely to a be a combustible mix at a Senate confirmation hearing. While she was a law professor at Notre Dame, an official school magazine reported that Barrett declared her conviction that life begins with conception and criticized Roe as a judicial fiat that created abortion on demand.

“It would be hard to overstate the degree to which Barrett’s academic work has been tailored to dismantle Roe v. Wade,” an Alliance for Justice report said.

A Supreme Court confirmation hearing for Barrett could end up as a much higher-profile reprise of her hearing for the 7th Circuit last September. That session set off a political battle as Democrats suggested that she indicated her Catholic views could affect her judging and Republicans accused Democrats of anti-Catholic bias.

“Dogma lives loudly within you,” Sen. Dianne Feinstein (D-Calif.) said at the hearing.

“My personal church affiliation or my religious belief would not bear on my discharge of my duties as a judge,” Barrett insisted.

After the hearing, the presidents of the University of Notre Dame and Princeton University complained that Democrats seemed to be imposing an unfair religious test on Barrett.

Barrett was confirmed the following month, 55-43, but many legal observers believe the Trump White House will ultimately conclude that it does not want to put forward a nominee whom some senators, including Collins and Murkowski, could regard as unduly provocative on the abortion issue.

The public views of the other female nominees on that issue are more murky. Eid unsuccessfully urged her colleagues on the Colorado Supreme Court to take up a legal case involving an injunction against the display of graphic images by anti-abortion protesters. Some anti-abortion groups have taken her stance as a sign that she opposes abortion.

Nominees who have publicly recorded comments or writings on abortion could find it more difficult to resist senators’ questions on the topic. However, some lawyers say that a nominee could mimic Justice Ruth Bader Ginsburg’s approach at her 1993 hearing and decline to get into issues that could come before the court.

“When the hearing does happen, of course I think the Ginsburg rule is completely appropriate,” said Erin Hawley, a University of Missouri law professor.

“I would be all for a woman nominee,” said Hawley, while adding: “Judicial philosophy should be the main factor.”

Among those who seem to be promoting a female nominee: Bill Kristol, editor of The Weekly Standard.

“I think the Trump SCOTUS nominee will only be able get 56 votes if she affirms in one way or another that Roe is settled law, and if her record isn’t startlingly at odds with that,” Kristol wrote on Twitter. “There may not be 50 votes in Senate to confirm a plausibly ‘this means overruling of Roe’ nominee.”

The conservative, who is often harshly critical of Trump, said he believes the nod will go to Ryan, the military appeals court judge. “Ryan also a Marine!” Kristol added.

Among conservative activists, Barrett and Eid are mentioned most often as plausible picks, followed by Larsen. Sykes, 60, is considered by many to be too old to be likely to offer the decades on the court that Trump has said he wants a nominee to serve. Grant, 40, fares better actuarially but has been on the bench for less than a year and a half and is still awaiting confirmation to the 11th Circuit.

Asked whether he’s advocating for a woman for the slot, Kristol said: “Not sure if it’s a good idea but suspect Trump may think it’s a good idea — Just speculating Trump might be inclined toward that, especially since Collins and Murkowski are two of the obvious possible defectors.”

Kristol said he thought someone “more opaque” on abortion than Barrett would get the pick — a view that Levey, of the Committee for Justice, also endorsed.

“I think,” he said, “it is unlikely that Trump will pick someone with a strong pro-life record.”