The first time the Trump campaign talked with officials of The Federalist Society about judicial nominations, White House Counsel Donald F. McGahn II told the conservative legal group’s annual conclave Friday night, McGahn said the campaign was going to come up with two lists.
The first would be filled with the names of “mainstream” folks who would have no trouble winning confirmation. The second would be those considered “too hot for prime time . . . the kind of people who make some people nervous.”
The first list, McGahn joked, would be thrown in the trash.
The second “is who we’re going to put before the U.S. Senate because I know Leader McConnell is going to get it done,” McGahn said, referring to Senate Majority Leader Mitch McConnell (R-Ky.).
It was a prank, McGahn said later. But the reality is that the cooperation between President Trump, McConnell and The Federalist Society has paid dividends for the conservative legal movement.
McConnell refused to hold a Senate confirmation hearing for Judge Merrick Garland, President Barack Obama’s nominee to fill the seat of the late Justice Antonin Scalia. Ultimately, this kept the spot open for President Trump’s nominee, Neil M. Gorsuch, and fortified the court’s conservative majority.
With Senate Republicans also refusing during the previous administration to act on openings in the lower courts, “the number of vacancies that was on the table when the president was sworn in was unprecedented,” McGahn said. He praised “the courage that Mitch McConnell showed to make that happen.”
McGahn said the Trump administration would not waste the opportunity to stock the federal judiciary with judges who take an originalist approach to constitutional interpretation and also abide closely to the text of statutes.
“This administration’s mandate on judicial selections is crystal clear: Choose judges in the mold of Justice Scalia, Justice [Clarence] Thomas and now Justice Gorsuch,” McGahn said.
McGahn did not mention the other GOP-appointed members of the Supreme Court — Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, whose rulings have made them suspect in the eyes of some conservatives, and Justice Samuel A. Alito Jr. Alito is a Federalist Society favorite, but he does not identify as an originalist — one who believes the first rule of constitutional interpretation is how the text was understood at the time of its enactment.
Gorsuch, who received long, standing ovations Friday night, was the featured attraction of the black-tie gala. “Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States,” Gorsuch said.
Gorsuch was confirmed in April after McConnell did away with a Senate filibuster option that would have given Senate Democrats a way to derail his nomination. “Originalism has regained its place, and textualism has triumphed, and neither is going anywhere on my watch,” Gorsuch said.
Gorsuch mentioned somewhat obliquely a case he heard that relied on a textual reading of a statute in a decision that drew stinging criticism from Democrats and others at his confirmation hearings. In the “frozen trucker” case, Gorsuch dissented from previous court rulings that protected a truck driver who had decoupled his broken-down trailer and driven away in his truck cab out of fear he might freeze to death on the side of the road.
The law protected workers who refuse to operate a vehicle because of safety concerns, Gorsuch said, but the driver had clearly operated the truck by driving away in search of shelter.
Judicial modesty, Gorsuch said, requires judges to abide by the literal words of a law even if that means failing to provide the protection Congress probably intended to provide.
“One, the law is telling me to do something really, really stupid,” he said. “Two, the law is constitutional, and I have no choice but to do that really stupid thing the law requires. And three, when it’s done, everyone who’s not a lawyer is going to think I just hate truckers.”
McGahn said he had not seen a presidential election in his lifetime turn so clearly on the issue of the Supreme Court and federal judges. To that end, the White House just before McGahn’s speech “refreshed” its list of those who would be considered for a Supreme Court opening “should one arise.”
The Federalist Society and its executive vice president, Leonard Leo, have played a large role in recommending and vetting candidates for the Supreme Court and other federal judgeships. Gorsuch and McGahn mocked concern about its influence.
If the group wants to keep its role as a secretive behind-the-scenes power, Gorsuch joked, maybe don’t hold meetings “in the middle of Union Station and then tell everyone to wear black-tie.”
McGahn said it is “completely false” that the White House has “outsourced” the selection of federal judges to the organization.
It’s not even necessary, he said. “I’ve been a member of the Federalist Society since law school — still am,” he said. “So frankly, it seems like it’s been in-sourced.”