Steven Colloton of Iowa
Allison Eid of Colorado
Raymond Gruender of Missouri
Thomas Hardiman of Pennsylvania
Raymond Kethledge of Michigan
Joan Larsen of Michigan
Thomas Lee of Utah
William Pryor of Alabama
David Stras of Minnesota
Diane Sykes of Wisconsin
Don Willett of Texas
No one on the list knew that he or she would be on it. Don Willett of the Texas Supreme Court was at a book-signing for Governor Greg Abbott when news broke that he’d been included. Asked to comment on his inclusion, he declined. On the day Trump announced his candidacy, Willett had tweeted:
Donald Trump haiku—
Who would the Donald
Name to #SCOTUS? The mind reels.
*weeps—can’t finish tweet*81
It wasn’t his only tweet critical of the candidate. Nevertheless, Trump eventually appointed Willett to the Fifth Circuit. The media highlighted the tweets again, to the consternation of the president, but the quality of his opinions was what mattered. The media’s reaction focused on tangential issues, such as Willett’s tweets or the absence of D.C. insiders such as Kavanaugh and Clement, but most treated the list as largely respectable, if conservative.82
The Cruz campaign, still hoping to make a play at the Republican convention, was paralyzed. Chuck Cooper, a topflight litigator, head of Reagan’s Office of Legal Counsel, and an adviser to the campaign, said the list was brilliant. Campaign staff contemplated putting out their own list but couldn’t find anyone on Trump’s list that wouldn’t be on theirs. Other conservatives loved the list as well. But because Trump had not promised to take his nominee from the list—he called it a list of “potential” nominees—some said it didn’t mean anything. The “NeverTrump” movement within the Republican Party, which would make a last-ditch effort to deprive him of the nomination at the GOP convention in August, argued that he couldn’t be trusted to take his nominee from the list.
Leo and McGahn, appreciating the amount of vetting still required before anyone on the list could be nominated to the Court, did not regard it as definitive and did not want to be confined to it. Besides, plenty of other people were under consideration, including Neil Gorsuch. He had written around 175 opinions on the Tenth Circuit, and it would take time to go through them all. They also knew that the conventional wisdom about the dangers of such a list was right about one thing: putting names out opened them to attack. They didn’t mind having a few top candidates like Gorsuch spared some of the barrage. For his part, Trump liked putting up the trial balloon.
Steve Bannon, the bombastic head of Breitbart News, became chief executive of the campaign in August. In light of how well the first list of judges had been received and because the NeverTrump faction was capitalizing on the conditional terms in which the first list was presented, he wanted an updated list with additional names and a firm commitment to take the nominee from it. And locking in a solid choice for the Supreme Court now would be an insurance policy in case someone with different judicial priorities became White House counsel or attorney general in a future Trump administration.
On September 23, 2016, three days before the first presidential debate with Hillary Clinton, Trump released an updated list with ten additional names, and he promised, “This list is definitive and I will choose only from it.”83 The new candidates were:
Keith Blackwell of Georgia
Charles Canady of Florida
Neil Gorsuch of Colorado
Mike Lee of Utah
Edward Mansfield of Iowa
Federico Moreno of Florida
Margaret Ryan of Virginia
Amul Thapar of Kentucky
Timothy Tymkovich of Colorado
Robert Young of Michigan
Senator Mike Lee, whose brother Thomas was already on the list, was the only non-judge to be included. He was added at the request of Cruz, who was preparing to endorse Trump after refusing to do so outright at the 2016 Republican convention. The radio and television host Laura Ingraham, a former law clerk for Justice Thomas, brokered the arrangement. Once the list was released, Cruz gave his endorsement, citing the Supreme Court and Lee’s inclusion on Trump’s list as his primary reason. “For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees—including Senator Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list. This commitment matters, and it provides a serious reason for voters to choose to support Trump,” he wrote in a Facebook post.84
The publication of a list of hard-core conservatives in the middle of a general election campaign spoke to how different Trump was from a traditional Republican. Most GOP candidates run to the right during the primaries, only to tack to the center during the general election campaign. Trump’s approach was to stay right where he was but force his opponent farther to the left.
Trump thought his list showed that he was for something. If Hillary Clinton provided her own short list, it would make her appear more radical. She was in a difficult situation, for she had to support Obama’s nominee, Judge Garland, while also signaling that her own nominees would be much farther to the left.85 Reflecting the prematurely triumphant mood of the left, Mark Tushnet of Harvard Law School argued that Democrats controlled the courts and should act like it by becoming even more aggressive in their push to enact a liberal agenda.86
In the final presidential debate, Clinton offered a list not of names but of political requirements for prospective justices. Specifically, she wanted a justice who would back women’s rights and LGBT rights, support Roe v. Wade, and reverse the Citizens United decision to get “dark money” out of politics.87 She often railed against the Citizens United decision, but she was rarely called to account for criticizing a case that decided whether it was a campaign finance violation to publicly screen a film criticizing . . . Hillary Clinton. These desiderata did not form a consistent, principled judicial philosophy so much as a wish list for liberal special interest groups.
When Trump shocked the world by winning, exit polls showed that the Supreme Court was at the top of the list for many voters. The list had played a huge role.
The ensuing transition was fairly chaotic. The chief of staff and White House counsel are usually named the day after the election, but Trump took several weeks to decide who would run his White House. Warring factions led multiple transition efforts, and McGahn was occupied with three recounts and other legal issues.
A week after Trump’s victory, Leo and Bunch were summoned to Trump Tower to winnow the twenty-one names on the updated list to a more manageable list for final vetting. They met with President-Elect Trump, his adviser Kellyanne Conway, and the incoming attorney general, Jeff Sessions. Bannon, Republican National Committee Chairman Reince Priebus, and Ivanka Trump also attended portions of the meeting. McGahn was away on lingering campaign business, including multiple recounts. He was under consideration for White House counsel, and at that meeting Leo, knowing the role would be decisive for the success of Trump’s judicial selection process, argued strongly in McGahn’s favor.
Trump began the meeting by discussing how consequential the Supreme Court issue was for voters. He knew the polling data, which showed that 26 percent of Trump voters said the Supreme Court was the basis of their decision.88 Trump joked that Clarence Thomas’s name received more applause at rallies than his own.