Trump and McGahn discussed the high probability that the first question of that evening’s debate would be about Scalia. As it turned out, not only was that the first question, but Trump was the first candidate asked to respond to it. “Mr. Trump, I want to start with you,” began John Dickerson, the even-keeled CBS moderator. “You’ve said that the president shouldn’t nominate anyone in the rest of his term to replace Justice Scalia. If you were president and had a chance with eleven months left to go in your term, wouldn’t it be an abdication to conservatives in particular not to name a conservative justice with the rest of your term?” Trump responded that he would certainly nominate someone and was “absolutely sure” that President Obama would try as well, adding that he hoped Mitch McConnell and the Republican Senate would be able to delay until the election.
And then he did something that turned out to be pivotal: He cited Diane Sykes and William Pryor as the kind of judge he would nominate to fill Scalia’s seat. Sykes, a former member of the Wisconsin Supreme Court, sits on the U.S. Court of Appeals for the Seventh Circuit. Pryor sits on the Eleventh Circuit. Both are known as bright lights in conservative jurisprudence, and attentive voters took notice.
The decision to name names was a result of the phone call with McGahn. Trump suggested he should name specific persons who would be good replacements for Scalia. McGahn agreed, noting that Ted Cruz might have the same idea and they’d love to beat him to it. But whom should Trump name that evening? He was already familiar with Pryor, who had a large conservative fan base. McGahn suggested Sykes because she had recently authored one of the strongest free-speech opinions since the Citizens United decision.
A third judge was also discussed: Brett Kavanaugh. While McGahn emphasized Kavanaugh’s stellar credentials and right instincts on separation of powers, he acknowledged he might be viewed as an inside-the-beltway candidate, the kind of judge Jeb Bush might pick. And a Kavanaugh opinion on Obamacare, which some read as the blueprint Chief Justice Roberts used to save the legislation when it came before the Supreme Court, had aroused the suspicions of legal conservatives. Not wanting to overload the candidate in the middle of his debate preparation, McGahn stopped the conversation there.
Later in the debate, Cruz took a shot at Trump. “The next president is going to appoint one, two, three, four Supreme Court Justices. If Donald Trump is president, he will appoint liberals.” Trump responded by pointing out that Cruz had supported George W. Bush’s pick of John Roberts for chief justice. “They both pushed him, he twice approved Obamacare,” Trump said.70 Cruz had spent months needling Trump about his sister, handing out summaries of her decisions. For the debate, he expected Trump to suggest that Cruz himself would make a good justice. Trump’s naming two well-qualified judges took him by surprise.
Republican nominees had long gotten away with merely signaling the type of justice they would nominate. In an interview for the Weekly Standard in 1999, Fred Barnes asked then-candidate George W. Bush about the kind of judge he would want. “Bush was quite specific. ‘I have great respect for Justice Scalia,’ Bush said,” citing his “strength of mind, the consistency of his convictions, and the judicial philosophy he defends.”71 But Bush was careful not to be any more specific than that. In the October 2004 debate with John Kerry he was asked, “If there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, whom would you choose and why?” Bush’s response fit the conventional wisdom of the day: “I’m not telling.”72
But some were beginning to recognize that disappointment with previous Supreme Court appointments was animating conservative primary voters. Following the September 2015 debate in which Cruz focused on the Court, the Washington Post ran an article headlined “How the Bush-Nominated Chief Justice Roberts Became Target in GOP Debates.”73 Scalia’s death, then, was not the only reason that Supreme Court appointments were a central issue in the debate that evening.
The next morning Cruz and Trump were interviewed by the former Clinton spokesman George Stephanopoulos. Cruz said, “The one person he has suggested that would make a good justice is his sister, who is a court of appeals judge appointed by Bill Clinton. She is a hardcore pro-abortion liberal judge. And he said she would make a terrific justice.”74 Trump responded that he had “said it jokingly,” that she “happens to have a little bit different views than me,” and she “obviously would not be the right person.” Appointing his own sister, moreover, would involve a “conflict of interest.” He reiterated that the Bushes and Cruz had supported Roberts. It “was among the worst appointments I’ve ever seen. We have Obamacare because of Ted Cruz, Jeb Bush, and George Bush,” Trump declared.75
Still, the issue of judicial appointments had been troublesome for Trump in Iowa, and the conventional wisdom was that Scalia’s death would be a blow to the campaign. “In Death, Scalia May Succeed in Blocking Trump,” read the headline to a Roll Call article by Melinda Henneberger, arguing that conservatives wouldn’t risk a vote for Trump with a Supreme Court seat hanging in the balance.76 And yet Trump’s response to Scalia’s death, that evening and in the weeks to come, helped propel him to a victory that nobody thought he could win.
Voters responded so well to Trump’s reference to Sykes and Pryor in debates and speeches that he decided to make a longer list of judges who met with conservative approval. To get on the list, a judge (1) had to adhere to an originalist and textualist judicial philosophy,77 (2) had to have a clear record of following that judicial philosophy, and (3) had to have demonstrated the courage of his convictions—criteria that reflected a determination to avoid the failures of previous Republican presidents.
McGahn organized a meet and greet with Trump at his law firm Jones Day in Washington on March 21 for members of congress who had endorsed him. Representative Tom Price of Georgia, a physician whom Trump would eventually tap to run the Department of Health and Human Services, wanted to come, but he wasn’t invited. The only invited official who had not yet endorsed Trump was Senator Tom Cotton of Arkansas. Other key players at the reception included former Speaker of the House Newt Gingrich; Jim DeMint, the president of the Heritage Foundation and a former senator; and Leonard Leo. McGahn laid the groundwork for the meeting by explaining to Trump the importance of the Federalist Society in the legal community and by asking Leo to come to the meeting with the names of some judges who would be worthy replacements for Scalia. Leo brought a card with a handful of names, and McGahn put it in his breast pocket.
During the meeting, Trump asked everyone what he thought of his naming names during the debate and whether publishing a longer list was a good idea. The guests were surprised, but they approved, and Trump asked for their help. Afterward, he met privately with McGahn and Leo, and they discussed Souter and Roberts. Trump said he didn’t like Roberts’s Obamacare decision because the chief justice “made it up.” Then Trump asked Leo for suggestions for his list, and McGahn pulled Leo’s card out of his pocket. Trump asked if he could keep it, and he did. (After the election, when Leo met with the president-elect at Trump Tower, Trump pulled the card out for reference. He had written “Paul Clement?” on it with a Sharpie, a reflection of how many people had urged him to consider George W. Bush’s solicitor general.)