Two female federal court judges are emerging at the top of President Donald J. Trump‘s shortlist of prospective nominees to the Supreme Court: Diane Humetewa, 55, of the District Court for Arizona based in Pheonix; and Amy Coney Barrett, age 47, of the Court of Appeals for the 7th Circut based in Chicago. Both women are Republicans who have been described as ‘textualists’ by legal scholars.
President Trump has been assembling a shortlist of Supreme Court nominees in the unenviable event that he is forced to nominate a Justice to the Court ahead of the next federal election — a herculean task for even the most masterful tacticians. Now, these two women have emerged at the crux of election-year strategy discussions inside the White House.
Sources familiar with the President’s thinking told The Chronicle that, if a vacancy on the Court occurs prior to the federal election due to retirement, he is likely to nominate Humetewa — who is widely seen as a consensus nominee against whom Senate Minority Leader Chuck Schumer would have no political opening to filibuster. If the Court vacancy occurs after the election (or for a reason other than retirement), the source contends that Barrett will be the President’s next nominee.
It is thought among legal scholars that Humetewa would be unlikely to overturn Roe v Wade, more comfortably deferring to the case as established law; while Barrett would be far more likely overturn Roe. In an election year, the political calculations of such a nomination are multi-fold.
Humetewa, whose career has been a federal prosecutor, is associated with a more moderate and wing of the Republican Party than is Barrett. She worked on the staff of Senator John McCain and held several positions at the Department of Justice, including as an Assistant US Attorney, before being nominated by President George W. Bush to serve as the United States Attorney for Arizona, where she built a reputation for aggressively waging a war against the cross-border drug trade, and was praised on both sides of the aisle for pursuing public corruption cases (including the indictment of former Republican Congressman Rick Renzi and his subsequent guilty plea).
In contrast, Barrett’s career has been mainly as an academic at the Notre Dame Law School in South Bend, Indiana. She returned to her alma mater to teach after serving as a law clerk to Justice Antonin Scalia and then working for a few years in private practice. She is among the most widely published scholars of her generation on issues of the Constitution and jurisprudence — the paper trail of which is said to concern White House advisor Jared Kushner, among others. Barrett has served on the Circut Court for nearly two years, having been nominated by President Trump in 2017 and narrowly confirmed to the Senate in a 54-46 vote.
Humetewa has been confirmed by the Senate twice in overwhelmingly bipartisan votes, including in 2014 when Barak Obama nominated her to the federal bench on the recommendation of Senator McCain. That vote was 96-0. She is the first Native American woman to serve on the federal bench and was the first Native American to serve as a United States Attorney. It would be nearly impossible for Schumer to oppose the nomination — especially in an election year.
Kushner worries that nominating Barrett would cause Schumer to fear-monger on the issue of abortion through the election, in an effort to raise money and to scare women voters to the polls. Looking at the data, Kushner knows that a Barrett nomination would make it more difficult for the President to win the Philadelphia suburbs and the counties north of Detroit — two key electorates that he is working hard to secure.
Nominating the first Native American woman to the Supreme Court, in contrast, would be seen as very popular among suburban voters near Philadelphia and Detroit. Perhaps equally impactful (from an electoral college perspective), a Humetewa nomination would be likely to drive up support among the large Native American populations in Arizona, New Mexico, Colorado, and Nevada — all narrowly divided States where a bloc swing vote could have a determinative impact.
If Trump does nominate Humetewa, one Connecticut-based Tribe may very well fund a $10 million series of well-directed television commercials thanking the President in the media markets of Phoenix, Albuquerque, and Minneapolis, where large indigenous populations reside.
The Chronicle is told that Trump is unlikely to nominate another male to the Court, given the wildly unfair and frivolous allegations that were made against Justice Brett Kavanaugh. The President fears that Schumer is ‘even more willing now’ to smear his next nominee to the Court. If he does, however, the source says that nominee would likely be Senator Mike Lee of Utah, because he has “already withstood the scrutiny of high public office.”