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.
Still, however his views had been mischaracterized, Trump did not emphasize judicial appointments as other candidates did. “The next president will have the awesome responsibility to pick up to four Supreme Court justices that will decide issues of life and religious liberty,” Carly Fiorina told the crowds gathered at the March for Life in January 2016.14 Judges were arguably Ted Cruz’s main selling point to voters. The first Hispanic to clerk for a chief justice of the United States, Cruz had personally argued eight cases before