Immediately after the meeting at Jones Day, Trump went to the construction site of the Trump Hotel on Pennsylvania Avenue for a press conference. The last question was whether he had a litmus test for Supreme Court nominees. He said he’d be looking for smart conservatives. Then he announced he’d be “making up a list” of seven to ten people and “distributing that list in the very near future.”78 There was no going back.
When Jim DeMint returned to the Heritage Foundation, he immediately asked for help from John Malcolm, the head of Heritage’s Meese Center for Legal and Judicial Studies. Malcolm was concerned about making sure Heritage didn’t appear to be playing favorites with its advice, so he decided to publish the list for everyone, making it equally available to Bernie Sanders and Donald Trump. DeMint gave Malcolm relatively free rein, insisting only that the list be produced quickly. It was. Malcolm published a non-exclusive list of eight potential Supreme Court nominees just nine days later, on March 30.79
Trump’s team was also working quickly, but it was a daunting task. Determining who had the proper judicial philosophy, a clear record, and the courage of his convictions required combing through a multitude of opinions.
In addition to Leo, McGahn was assisted in finding candidates and reading their opinions mainly by his Jones Day associate James Burnham. People were eager to promote their favorite judge, so the recommendations poured in. One of the more valuable ones was Tom Hardiman, a Third Circuit judge who had gone to law school with McGahn’s law partner, Richard Milone. Leo also considered him a good candidate, and Trump’s sister, Hardiman’s colleague, praised his collegiality and work ethic. Her disagreement with many of his opinions may have been the perfect recommendation.
The team talked to the judges for whom candidates had clerked and to those who had clerked with them. McGahn was particularly interested in what candidates had been like in their mid-twenties, the stage of life when he believed most people’s views solidified. Justice Kennedy was eager to help, offering the names of at least six former clerks who were in his “top five.” Kavanaugh was one of them. While Kennedy called his other clerks good or excellent, he tended to describe Kavanaugh as “brilliant.”
To enable his team to arrive at a thorough and reliable evaluation of each candidate’s judicial philosophy, McGahn required that he or she already be a judge. A lawyer can always distance himself from an argument, even an aggressive one, made on behalf of a client. But to sign one’s name to a judicial opinion takes courage and conviction. Leo helped confirm that candidates had been committed to conservative legal principles over the long haul and were not just opportunists showing up now that Obama’s presidency was ending and a Supreme Court nomination was in the offing.
Political considerations, though not the top concern, were necessarily present. The campaign’s strategy of realigning a winning coalition through the Rust Belt and its anti-establishment message militated against candidates from Washington, like Kavanaugh and Janice Rogers Brown of the D.C. Circuit. The latter, a favorite of McGahn’s, was at age sixty-seven probably past nomination age anyway.80
Candidates needed to understand separation of powers and administrative law. Trump and McGahn shared a skepticism of the deference shown to bureaucracies, though they arrived at that skepticism for different reasons. For Trump, it was an instinctive frustration with the red tape that slows down or even kills construction projects. McGahn, on the other hand, had worked in the sausage factory himself. He learned at the Federal Election Commission about the inordinate control agencies have in shaping the law through the regulatory process.
The team looked at how quick candidates were to defer to agencies. Some judges thought judicial restraint required deference to any governmental decision, including those of unelected bureaucrats. Others believed in deference to the constitutionally established branches of government, whose powers are checked and balanced, but approached the regulations spun out by unelected agencies with considerably more skepticism.
The candidates had to show they understood the ins and outs of statutory interpretation. It was always a good sign to see citations to Justice Scalia’s treatise Reading Law in their footnotes, but showing they understood how to apply the canons of statutory construction in practice was even more crucial. Justice Tom Lee of the Utah Supreme Court stood out on the list on the strength of his crisp style and cutting-edge textualist research.
Younger judges had an advantage simply because of the expectation that they would serve a long time, but McGahn’s team also liked them because they had come of age after the Bork hearings. Bork and Scalia had taught the law students of the 1980s and ’90s that they could be aggressive in fighting for their principles while still being engaging and witty. The concurrent rise of the Federalist Society was also of incalculable importance in forming and fortifying the generation of judges now coming into their own.
As research for the list progressed, it became clear that there was a whole generation of people in their forties who hadn’t followed the traditional career path of conservative attorneys. It used to be that promising law students came to D.C. for prominent clerkships, worked at the Department of Justice, and continued to rise through the Washington ranks until they were eligible to be judges. But that default career path had changed.
In its last two years, the Bush administration had been beset by foreign and domestic crises, and then came the eight years of the Obama administration. Republican prospects for 2016 and beyond looked dim. With no administration positions on the horizon, conservative lawyers had moved back home and developed careers there. Appellate practices took off at the state level. People who would have been at the Department of Justice in a Republican administration, such as Andy Oldham from Texas and Kyle Duncan from Louisiana (whom Trump would eventually appoint to appellate judgeships), instead went home and worked for state attorneys general. Many ended up on state supreme courts, such as David Stras of Minnesota and Allison Eid of Colorado (also now Trump-appointed circuit court judges). So even though the federal bench had been closed to young conservative talent for nearly a decade, McGahn’s team could choose from an abundance of rising stars with state judicial experience.
Trump’s opportunities to appoint a Supreme Court justice would be limited, of course—three or four at the most, perhaps only one. But in compiling the Supreme Court list, McGahn’s team was identifying candidates for the circuit courts as well. The next president would enter office with a historic number of judicial vacancies—more than awaited four of his five predecessors—and many more judges were ready to take senior status, opening more seats. It would be a tremendous opportunity to influence the federal judiciary starting on day one.
The list was done and ready to go for weeks, but Trump didn’t release it. A previously released list of unvetted foreign policy advisors had caused the media to accuse him of being a Russian stooge, and now he wondered whether such lists were a good idea. Believing that the Supreme Court list would help Trump defeat Cruz in the primaries, McGahn had wanted it out before the Indiana primary on May 3. When Trump won that contest, securing the Republican nomination without the list, McGahn figured it would never be released.
On May 18, however, Trump called McGahn and told him he wanted to put the list out. He asked McGahn for assurance that each name had been thoroughly vetted. When Trump pressed him about the quality of the candidates, McGahn offered to put the list out under his own name, an offer Trump declined. Within minutes of receiving the final approved list, the campaign posted it: