How the Trump Administration Is Remaking the Courts

By Jason Zengerle, The New York Times

22 August 18

Thanks to ruthless discipline — and a plan long in the making — the G.O.P is carrying out a sweeping transformation of the federal judiciary.

onald F. McGahn, the White House counsel, stood in the gilded ballroom of Washington’s Mayflower Hotel last November to address the annual meeting of the Federalist Society. He seemed humbled, even a bit awed to be delivering the Barbara K. Olson Memorial lecture, named after the conservative lawyer who died in the Sept. 11 attacks. Noting some of the legal giants who gave the Olson lecture in years past, McGahn reflected, “You hear names like Scalia, Roberts and Gorsuch and then me; one of those names really is different than the rest.” Unlike previous speakers — to say nothing of many of those to whom he was now speaking — McGahn, himself a member of the Federalist Society, hadn’t attended an Ivy League law school; he went to Widener University, a “second tier” law school in Pennsylvania. He had never held a tenured professorship or boasted an appellate practice, much less a judgeship, that required him to think deeply about weighty constitutional issues; he specialized in the comparably mundane and technical field of campaign finance and election law. “But here we are,” McGahn said to the audience, almost apologetically. In 2015, Donald Trump hired McGahn to be the lawyer for his long-shot presidential campaign. Then, after Trump shockingly won the election, he tapped McGahn, who had proved his talent and loyalty during the campaign, to be White House counsel. Trump, in other words, had made McGahn’s wildest dreams come true. Now, McGahn told the Federalist Society, Trump was going to make their wildest dreams come true, too.

The Federalist Society for Law and Public Policy Studies, as it is officially known, has played a crucial role in putting conservative jurists on the bench. As White House counsel, McGahn is responsible for helping Trump select his judicial nominees. And, as he explained in his speech that November afternoon, he had drawn up two lists of potential judicial appointments. The first list consisted of “mainstream folks, not a big paper trail, the kind of folks that will get through the Senate and will make us feel good that we put some pragmatic folks on the bench.” The second list was made up of “some folks that are kind of too hot for prime time, the kind that would be really hot in the Senate, probably people who have written a lot, we really get a sense of their views — the kind of people that make some people nervous.” The first list, McGahn said, Trump decided to “throw in the trash.” The second list Trump resolved “to put before the U.S. Senate” for a confirmation vote. The president, McGahn assured his audience, was “very committed to what we are committed to here, which is nominating and appointing judges that are committed originalists and textualists.”

As White House counsel, McGahn has exercised an unprecedented degree of control over judicial appointments. In previous White Houses, both Republican and Democrat, judicial nominations were typically crowdsourced among officials from different parts of the administration. Under George W. Bush, for instance, there was a judicial-selection committee made up of people from the offices of the White House counsel, political affairs and legislative affairs, as well as officials from the Justice Department. This tended to produce a leveling effect. “You killed nominees by committee,” says one Republican involved in judicial confirmations. Under Trump, the job belongs exclusively to the White House Counsel’s Office, with McGahn and his deputy, Robert Luther, and about 10 associate counsels identifying and then scrutinizing candidates. This process is unique in White House history. Instead of engaging in the typical legislative horse-trading for nominating judges — promising a senator, for instance, that the president will support the nomination of the lawyer who served as the senator’s campaign-finance chairman in exchange for a yes vote on the administration’s agriculture bill — the Trump White House has given the counsel’s office near-absolute authority. In a White House known for chaos and dysfunction, the counsel’s office, under McGahn, is generally viewed as an island of competence. “The White House is like a Dante’s ‘Inferno’-strange comedy,” says one leading conservative lawyer who requested anonymity for fear of reprisal, “but the people in the counsel’s office are like the A-Team.” That many of the lawyers in the counsel’s office are also Federalist Society members — as elite Republican lawyers today often are — has given McGahn a handy rebuttal to the complaint that Trump has outsourced his judicial-selection process to the group. “Frankly,” McGahn has said, “it seems like it’s been insourced.”

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