Democrats took the same stance during George W. Bush’s second term. A full eighteen months before that term ended, Senator Charles Schumer of New York declared that, absent “extraordinary circumstances,” no Supreme Court nominee should be confirmed if a vacancy arose while Bush was still president.2
Within an hour of the news of Scalia’s death, McConnell announced that the vacancy would not be filled until after the election of 2016 and that President Obama should not bother with a nomination. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said.3
McConnell’s speed in releasing the statement was intentional. He knew Scalia’s death was major news, and most of the fifty-four Republican senators, home for a week-long recess, would be peppered with questions about what they thought should be done. Contradictory statements from various Republican senators would breed confusion. He also believed that confirmation hearings would be both politically riskier and less respectful to the nominee. By refusing to consider anyone to fill the vacancy, McConnell would spare a nominee unnecessary criticism of his judicial opinions and philosophy. Despite their earlier position, Democrats were livid with McConnell’s stance, and their reactions led news coverage for days.
Notwithstanding McConnell’s preemptive statement, the politically vulnerable Republican Mark Kirk of Illinois called for Senate hearings.4 Senator Jerry Moran of Kansas also briefly supported a hearing on an Obama nomination, but he reversed himself in the face of a furious backlash.5 When President Obama eventually nominated Judge Merrick Garland for Scalia’s seat, Maine’s Susan Collins told reporters she was “more convinced than ever that the [confirmation] process should proceed,” but she was “not optimistic that I will be changing minds on this issue.”6 Senator Jeff Flake of Arizona at one point encouraged Republicans to consider Garland’s nomination after the election and before newly elected senators took their seats.7 Still, McConnell’s statement proved remarkably effective at keeping Republican senators from announcing that they looked forward to a confirmation battle.
Chuck Grassley, the senator in charge of judicial confirmations, was in his home state of Iowa at the time of Scalia’s death. It had snowed, and true to his reputation as a self-sufficient farmer, the octogenarian was shoveling his driveway, so he missed the numerous phone calls from his staff trying to alert him to the news. He first heard of Scalia’s passing from a Des Moines Register reporter who called him for comment. He demurred when asked what the next steps would be, but within hours he released an official statement that noted the futility of making a nomination. Ultimately, the decision whether to hold hearings on a nominee would be Grassley’s, and he was typically blunt:
The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.8
Grassley’s position was politically riskier than McConnell’s. He was in a reelection campaign himself, and polls suggested that two-thirds of the country thought his committee should hold hearings on a nominee. The New York Times described Grassley as the “face of his party’s refusal to hold a hearing on President Obama’s nominee to the Supreme Court,” and warned that as a result he would face a “strong” and “formidable challenger” named, appropriately enough, Patty Judge, a former lieutenant governor and state agriculture secretary.9 (Grassley ultimately won reelection by a nearly twenty-five-point margin). Democrats focused their ire on Grassley and Harry Reid of Nevada, the minority leader, berated him on the floor of the Senate day after day. To force hearings, President Obama even considered nominating his Harvard Law School classmate Jane Kelly, a federal appeals court judge from Iowa, whom Grassley had supported when she was confirmed to the Eighth Circuit.10 “They did all their tactics, attacking him in town halls, chasing him in the hallway here, and all that kind of stuff,” one staffer reported. “It felt like you were in a foxhole, but at no point was he ever going to crack.”
Senators were one thing, but candidates vying for the Republican nomination for president were another complication. The crowded primary field had narrowed from seventeen to the six who were to appear in a debate in Greenville, South Carolina, the night of Scalia’s death: former Governor Jeb Bush of Florida, the neurosurgeon and author Ben Carson, Senator Ted Cruz of Texas, Governor John Kasich of Ohio, Senator Marco Rubio of Florida, and the businessman Donald Trump.
The Trump campaign’s legal counsel, Don McGahn, was driving down Route 50 to play guitar at a gig for his 1980s cover band in Ocean City, Maryland, when his wife texted him about Scalia’s death. McGahn pulled over to a gas station and cried. He had no relationship with Scalia, but the admiration and reverence for Scalia among conservatives (and even some on the left) was so strong that his passing was deeply and broadly felt. McGahn quickly pulled himself together. The new Supreme Court vacancy would come up in the debate in just a few hours. He needed to have a plan.
A partner in the Washington office of the law firm Jones Day and a former chairman of the Federal Election Commission, McGahn was an ideal pick for the lean and scrappy anti-establishment Trump campaign, which needed someone who knew the system. He set up the legal structure for the campaign and would go up to New York to check in every few weeks. He’d been in Iowa earlier in the month for the caucuses, where Trump placed second behind Cruz. He’d also fought off an effort to keep Trump off the ballot in New Hampshire, whose primary Trump decisively won.
While Trump had not made judges a focus of his campaign, as Senator Cruz had, his limited comments about them had already caused problems. Social conservatives in Iowa had been telling voters that Trump would not appoint good judges. He wasn’t a real conservative, and he had called his sister, Maryanne Trump Barry, a semi-retired senior judge of the U.S. Court of Appeals for the Third Circuit, “phenomenal.”11 Judge Barry had once issued a ruling finding constitutional protection for partial-birth abortion, in which the living child is partially extracted, feet first, from the womb before his or her skull is pierced and the brains sucked out. “Trump’s recent suggestion that he would nominate his sister, Maryanne Trump Barry, [to the Supreme Court] is troubling to some conservatives. Trump has said that Barry, who was a Clinton appointee, would be a ‘fantastic’ and ‘phenomenal’ justice,” the Washington Examiner reported.12
The reporting, however, misinterpreted his remarks from an interview on August 26, 2015, with Bloomberg’s Mark Halperin and John Heilemann. Trump had defended Justice Clarence Thomas, critiqued Chief Justice Roberts’s recent rulings, and said it was “inappropriate” to identify who he thought would be good on the Court. “What about your sister?” Halperin asked. Trump effusively praised his seventy-eight-year-old sister before saying of her nomination that he’d have to “rule that out for now.”13 The carefree comment was obviously not serious, as he clarified later.