In early 2016, while working as Donald Trump’s top campaign lawyer, Donald McGahn came up with a novel idea whose reverberations are still being felt. Although Trump was surging toward the GOP nomination, uncertainty about his ideology and how he would govern had unnerved many mainstream Republicans and social conservatives.
So McGahn conceived of a list. It would contain the names of people Trump would consider to replace the late Justice Antonin Scalia on the U.S. Supreme Court, one of the most important decisions facing the next president. By releasing the list publicly, Trump could reassure the GOP base.
The gambit helped Trump win the White House, and McGahn, now serving as White House counsel, is leading an aggressive campaign to reshape not only the Supreme Court but the entire federal judiciary. His list last year produced Justice Neil M. Gorsuch — and is now playing a critical role in filling a second Supreme Court vacancy.
Following Justice Anthony M. Kennedy’s retirement announcement last month, McGahn rapidly contacted judges on the list and brought them to interview with the president. When Trump announces his pick Monday night, the name will almost certainly be drawn from among the list’s 25 contenders.
Trump told reporters last week that he “could pick any of the 25, and they would be terrific. Those are very terrific people. The whole list is extraordinary.”
While other presidents surely made such lists, the decision to publicize the result has no known precedent. Republican strategists say the list achieved the original goal of making conservative voters more comfortable casting their votes for a former reality TV star who was once aligned with Democrats.
“One of the smartest strategic moves Trump made during the campaign was putting this list together and putting it out publicly, which calmed the social conservatives,” said Scott Reed, a veteran Republican strategist who managed former U.S. senator Robert Dole’s 1996 presidential bid. “It was a brilliant strategy. And it worked.”
Originally composed of 11 names, the list has since expanded to 25, becoming a Who’s Who of conservative jurists. In addition to sending a message to voters, it has telegraphed to ambitious lower-court judges what kind of judicial opinions and résumés would impress the Trump White House.
Among the current round of apparent finalists, only one — Raymond Kethledge, a former Kennedy clerk now on the Cincinnati-based U.S. Court of Appeals for the 6th Circuit — was on the initial list of 11. Two others — Brett Kavanaugh, another former Kennedy clerk now on the powerful D.C. Circuit, and Amy Coney Barrett, a University of Notre Dame law professor nominated by Trump last year to the Chicago-based 7th Circuit — were added to the list last November.
As the list’s curator, McGahn, 50, has played an outsized role in Trump’s campaign to shift the Supreme Court to the right. A graduate of Widener Law Commonwealth in Harrisburg, Pa., McGahn is an expert on election law who served on the Federal Election Commission, spent 10 years as counsel to the National Republican Congressional Committee and practiced law at Patton Boggs and Jones Day, both high-profile Washington law firms.
Typically, the in-house lawyer at 1600 Pennsylvania Avenue shares responsibility for Supreme Court picks with the attorney general. But Trump’s fraught relationship with his own Justice Department — which is overseeing special counsel Robert S. Mueller III’s investigation of possible collusion between the Russian government and the Trump campaign — has increased McGahn’s importance.
“Don has taken more of a role in judicial and especially Supreme Court nominations than any prior White House counsel by far,” said Michael A. Carvin, a partner at Jones Day and, like McGahn, an expert in election law. “Don’s been the gatekeeper and the visionary on this from the middle of the campaign.”
The White House did not respond to a written request to interview McGahn for this article.
At McGahn’s side throughout the process has been Leonard Leo, executive vice president of the conservative Federalist Society. In an interview with The Washington Post, Leo recalled the earliest meeting about the list, when he, McGahn and Trump met in March 2016 at Jones Day.
After a few pleasantries, Leo recalled, they quickly got down to business. “We talked about what the process of judicial selection looked like during the Bush administration. We talked about the current composition of the court. Who was on the courts. Talked a little bit about Scalia. Talked about which people could potentially be on the list.”
Leo has since taken a leave from the Federalist Society to work as an unpaid adviser on the latest Supreme Court nomination. He rejected what he called the “folklore” that he is calling the shots.
“Anybody who knows the president knows that he’s in the driver’s seat. He’s the one who wanted the list. He’s the one who owns the list,” Leo said. “This is nobody else’s list.”
Describing Trump’s judicial preferences, Leo said: “What he has always said consistently is he wants people who are extraordinarily qualified, he wants people who are, his words, ‘not weak.’ ”
The Federalist Society, founded during the Reagan administration in 1982, advocates for “originalism” and “textualism” in the legal system, opposing judicial activism and the expansion of the “administrative state.” Originalism holds that the Constitution should be interpreted according to what the words of the document meant when they were written. Textualism holds that judges should enforce the literal text of a statute and rule against evolving interpretations — for example, by unelected bureaucrats who craft regulations.
Last November, McGahn spoke at a Federalist Society gathering at the Mayflower Hotel, where he declared that Trump’s judicial picks would adhere to the group’s philosophy. “He is selecting judges who will enforce the laws as written,” McGahn said. “The Trump vision of the judiciary can be summed up in two words: originalism and textualism.”
In the speech, McGahn chided Republican political consultants, who initially feared, he said, that the list’s endorsement of conservative judges would backfire when Trump faced Democrat Hillary Clinton in November 2016.
“Every consultant in Washington, D.C., said, as they said once a week, ‘Oh, it’s over. Can’t do that, got to move to the middle, especially in that judge thing. Going to scare people.’ ”
He also rejected the claim that the White House had outsourced the selection of judges to the Federalist Society, noting that he had been a member since his days at law school. “So, frankly, it seems like it’s been in-sourced,” he quipped.
In addition to keeping the Supreme Court list, McGahn is central to a broader process that has seated more than three dozen judges on the federal bench nationwide. In part because the Republican-controlled Senate had blocked nominees forwarded by Democrat Barack Obama, an unusually large number of federal judicial posts were vacant when Trump took office.
Given the age of the current Supreme Court — Justice Ruth Bader Ginsburg is 85 and Stephen G. Breyer will turn 80 this summer — it’s entirely possible that Trump could name additional justices before his presidency ends. Though his tendentious tenure has been marked by Twitter rages, staff turnover and the dark cloud of the Russia investigation, the Supreme Court has offered a chance for slam-dunk political victories. Trump’s decision to replace Scalia with Gorsuch was widely praised among the GOP establishment.
This second Supreme Court nomination is even more of a political opportunity. While Scalia was a steadfastly conservative vote, Kennedy was a swing vote who often sided with liberals on such closely divided issues as abortion rights, marriage equality and the constitutionality of the Affordable Care Act. Democrats are vowing to put up a fierce fight in Senate confirmation hearings, expected later this summer; Trump has said that he will entrust preparations for those hearings to McGahn.
Those who know him say McGahn has deftly managed his relationship with the president. He generally keeps a low profile, a wise move in a White House where Trump demands the spotlight.
But he also has earned a reputation as one of the few White House aides willing to say no to Trump. The New York Times reported in January that McGahn refused last year when Trump wanted him to order the Justice Department to fire Mueller. The president denied that report, calling it “fake news.”
Sam Nunberg, a former Trump campaign adviser, said McGahn “knows when to talk and when not to talk. He’s not in Trump’s face unless he has to be.”
Like many in Trump’s orbit, McGahn has been interviewed by Mueller, first in December 2017 and again this spring. Earlier this year, he considered leaving the White House to return to Jones Day.
But McGahn ultimately decided to stay — a decision that is now paying off handsomely, said Reed, the Republican strategist.
“He survived an incredibly turbulent 12 months,” Reed said. Now “he’s in a position to help land the plane again.”
Robert Barnes, Robert Costa and Rosalind Helderman contributed to this report.