How conservative operatives and Senate Republicans are helping the president pack the courts at a record pace
By Andy Kroll | RollingStone | 08/19/2018
One evening last November, Don McGahn, the top lawyer in the Trump White House, walked onstage in an opulent ballroom at the Mayflower Hotel in Washington, D.C. He looked out at the audience of several hundred judges, lawyers, clerks and law students seated under a pair of glittering chandeliers that hung from a ceiling accented in gold. McGahn, who rarely gives interviews or speeches, had come to speak at the annual conference of the Federalist Society, the powerful network of conservative lawyers, and the occasion felt like a homecoming and a victory lap.
Over the past two decades — including five years serving on the Federal Election Commission — McGahn has become an ideological warrior battling what he sees as the tyranny of the federal government. He parlayed his campaign-finance expertise into a job as Donald Trump’s lawyer. After the election, Trump rewarded McGahn with the job of White House counsel, a perch from which McGahn has spearheaded the administration’s unprecedented campaign to reshape the American judicial system, filling courts with judges who share Trump’s goals of dismantling environmental protection, rolling back civil and reproductive rights, and gutting labor laws — in other words, destroying the so-called administrative state. “These efforts to reform the regulatory state begin with Congress and the executive branch,” McGahn said in his speech, “but they ultimately depend on courts.”
On the campaign trail, Trump told evangelicals and other wavering Republicans they had no choice but to vote for him: “You know why? Supreme Court judges, Supreme Court judges.” He talked about judges nonstop and even released a list of 21 potential Supreme Court picks that he had gathered with the help of the Federalist Society and the archconservative Heritage Foundation. He would enter office with the most judicial vacancies since Bill Clinton — largely thanks to Republican filibustering of Obama’s nominees — and his administration has filled those vacancies as fast as possible.
As of this writing, Trump has put 26 new judges onto the appellate courts, more than any other chief executive at this point in the presidency. He has also nominated over 100 district-court judges and gotten 26 of those picks confirmed. These judges are overwhelmingly young, ideological and now set to serve lifetime appointments. And then, of course, there’s Justice Neil Gorsuch, Trump’s first pick for the Supreme Court, and Judge Brett Kavanaugh, the president’s second Supreme Court nominee, who stands a strong chance of confirmation. “Whatever anyone wants to say about President Trump, he was very explicit about which judges he wanted, and he’s gone about appointing them,” says Michael Gerhardt, a law professor at the University of North Carolina-Chapel Hill. “He made a promise and they’re keeping it.”
What unites these judges is the radical legal doctrine of originalism — that the text of the Constitution should be understood only as it was intended when written more than 230 years ago. Originalism was long seen as a fringe philosophy; taken to its logical extreme, an originalist reading of the Constitution could mean a country without same-sex marriage, federal child-labor laws or the Americans With Disabilities Act. Today, however, originalism is the dominant legal philosophy on the right and the litmus test for any judge appointed by President Trump.
That’s in large part due to the influence of Leonard Leo, who sat in the front row for McGahn’s speech. An owlish 52-year-old lawyer and operative, Leo is the executive vice president of the Federalist Society, where he has played a pivotal role grooming a generation of conservative lawyers and supplying dozens of names to the White House for judicial vacancies. (He has advised on the past three successful Republican picks for the Supreme Court.) “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn said. “That is completely false. I’ve been a member of the Federalist Society since law school, still am, so frankly it seems like it’s been in-sourced.”
Behind all the chaos and upheaval of the Trump administration, McGahn, Leo and Republican leaders including Senate Majority Leader Mitch McConnell have steadily filled the courts with future Clarence Thomases and Antonin Scalias. In Donald Trump, they have found the perfect vehicle for executing a judicial takeover. “We’re now looking at the possibility of as many as three Supreme Court vacancies and more than 200 lower-court seats to fill just in these next few years,” Leo said last year. “We are at this unique point in history.”
In the process of filling the empty seats, McGahn and Co. have shown a willingness to look past extreme and inflammatory comments made by judicial nominees. Damien Schiff, a Trump pick for the U.S. Court of Federal Claims, blogged in 2007 that Justice Anthony Kennedy was a “judicial prostitute” because of his frequent swing votes. John Bush, an appointee to the Sixth Circuit, likened Roe v. Wade to the 1857 Dred Scott decision, which denied citizenship to black people. Using an anonymous byline, Bush also promoted birther conspiracies about President Obama.
Not surprisingly, many of Trump’s picks have championed hard-line conservative positions on LGBTQ equality, civil rights, environmental regulation, consumer protection and more. These are the kinds of judges who hesitate to say that Brown v. Board of Education was correctly decided, or rule that campaign-finance laws are unconstitutional. They would almost certainly overturn Roe if given the chance. “These nominees appear to have been chosen because they check ideological boxes, rather than because they represent the best and the brightest,” says Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee. “This is a clear strategy to stack our courts for generations.”
It has taken brute force and legislative cunning to engineer an overhaul of the courts. During the Obama years, Senate Republicans — led by McConnell — filibustered so many picks for the bench that then-Senate Majority Leader Harry Reid used the “nuclear option” to abolish the 60-vote threshold for lower-court nominees. Reid said McConnell’s tactics had left him a choice: “Continue like we are or have democracy?” Obama rushed through a slew of confirmations, but Republicans won back the Senate in 2014. McConnell, a master tactician and consummate cynic, was running the show. He not only denied Obama the chance to fill a Supreme Court seat after Scalia’s death, but the Senate confirmed just 22 judicial nominees in Obama’s final two years, reportedly the lowest number since the end of Harry Truman’s second term, leaving 112 vacancies for Trump.
A week after Trump’s victory, McConnell gave McGahn a call to say the new president had a chance to make history. “The impact that this administration could have on the courts,” McConnell later told Time, “is the most long-lasting impact we could have.”
McConnell and Senate Republicans have tossed out one norm after another to whisk Trump’s nominees through the confirmation process. They eliminated the filibuster for Supreme Court picks, paving the way for Gorsuch’s confirmation. They’ve held confirmation hearings for two nominees at the same time, limiting how long each senator can question them. They have disregarded the blue-slip tradition of seeking the approval of both home-state senators before confirming a nominee. And with the exception of George W. Bush, Trump is the only president to dismiss the role of the American Bar Association, which interviews and rates the quality of judicial picks. The ABA rated four of Trump’s nominees “not qualified,” two of them by a unanimous decision. (That represented 25 percent of all “not qualified” ratings for the past five presidencies.)
Trump has also suffered some setbacks. One pick for the U.S. District Court of D.C., Matthew Petersen, withdrew his nomination after failing at his confirmation hearing to answer questions a first-year law student should know. Another nominee for appellate court, Ryan Bounds, went up in smoke when Sen. Tim Scott, R-S.C., vowed to oppose him due to past writings that were widely seen as racist. And then there was Brett Talley. A 36-year-old lawyer, horror novelist and ghost hunter with scant courtroom experience, Talley joined the Trump administration in early 2017 working in the Justice Department office that selects and vets judicial nominees. Trump nominated him later that year for a district-court opening in Alabama, but journalists soon discovered that Talley had written comments on a sports-fan message board trashing Muslims, making light of statutory rape and defending the first grand wizard of the Ku Klux Klan. Talley withdrew his nomination — only to land a plush job as an assistant U.S. attorney in northern Virginia.
But at the appellate-court level — the “de facto Supreme Court to the vast majority” of Americans, as Feinstein once put it — Trump appointed more judges in his first year than any previous president since the appeals courts were created in 1891. Appellate courts hear 59,000 cases a year, compared with just 70 or 80 for the Supreme Court. Trump is on pace to flip three of the 13 appellate courts from liberal to conservative in his first term alone. “These are the judges that have the greatest influence,” says John Malcolm of the Heritage Foundation. “The buck stops at the courts of appeals.”
It is too soon to say how influential Trump’s dozens of judicial picks will be, but the early returns are what you’d expect. Judge Amul Thapar, a Trump appointee on the Sixth Circuit, helped uphold Ohio’s controversial lethal-injection program and a Michigan county’s tradition of beginning government meetings with Christian prayer. Recently appointed Judge James Ho on the Fifth Circuit issued fiery opinions in two Texas cases, about campaign-finance limits and a law concerning the burial of fetal remains. Ho’s opinion on the latter case — at one point he refers to the “moral tragedy of abortion” — left no doubt about his opposition to Roe. “It is hard to imagine,” he wrote, “a better example of how far we have strayed from the text and original understanding of the Constitution than this case.”
If Republicans retain control of the Senate this fall — to say nothing of Trump in 2020 — McGahn and Leo and McConnell could have as much as 20 percent of the American judicial system to fill. As Heritage’s Malcolm puts it, “This is the president’s legacy.”