Courts

A Look Inside The Conservative Judge-Making Machine

When it comes to transforming the federal judiciary, what is the secret to the Republicans' success?

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Senator Mitch McConnell and former White House Counsel Don McGahn, speaking at the Federalist Society’s 2018 National Lawyers Convention (photo by David Lat).

Last night’s star-studded Federalist Society banquet, attended by four Supreme Court justices and a slew of senators and Cabinet members, was really a victory party. The annual National Lawyers Convention dinner, held in the cavernous main hall of Union Station, constituted a celebration of what conservatives have achieved in transforming the federal judiciary over the past two years.

Past annual dinners have often featured addresses by Supreme Court justices (and next year Justice Brett Kavanaugh, who received a spirited and sustained ovation at the banquet, will deliver the keynote). But last night’s event went in a different but still interesting direction, treating attendees to a “fireside chat” between two key architects of President Donald Trump’s judicial strategy: Senate Majority Leader Mitch McConnell (R-Kentucky) and former White House Counsel Don McGahn. The resulting dialogue was a look into what Jimmy Hoover of Law360 aptly describes as “the most effective conservative judge-making machine in history.”

Before Senator McConnell and Don McGahn took the stage, the Federalist Society honored outgoing Senator Orrin Hatch (R-Utah), a longtime friend of the organization. In his remarks, Senator Hatch made a candid comment that generated laughter and applause from the audience: “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!'”

After briefly discussing how Senator McConnell became so interested in judicial appointments, when he worked on nominations during his time as a Capitol Hill aide, McConnell and McGahn turned to the Senate’s “advice and consent” function. McConnell argued that it’s “a political matter” — in other words, advice and consent means “whatever the majority at any given moment thinks it means.”

So this is why, McConnell candidly acknowledged, he decided so quickly after Justice Antonin Scalia’s death that Scalia’s seat on the Supreme Court would be filled by the next president. He openly admitted that this was “a political instinct,” made before conducting any research. (It was only later that he and other Republicans learned of the so-called “Biden rule,” among other things.)

Throughout this entire discussion, Senate McConnell never uttered the name “Merrick Garland” — the D.C. Circuit Chief Judge was was never given a Supreme Court hearing, much less a vote. This reflected McConnell’s view of the process as purely political: “not about the nominee, but about who will make the nomination.” (McConnell did describe the unnamed Chief Judge Garland as “obviously a well-qualified nominee,” so there’s that.)

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This naturally led into the next topic of who would fill that seat — and then-candidate Donald Trump’s highly unorthodox decision to announce “The List,” a group of high-profile, conservative jurists from whom he would select his first Supreme Court nominee. (That initial list was later supplemented by a second list and a third list; Justice Neil Gorsuch appeared on the second list, and Justice Brett Kavanaugh appeared on the third.)

The decision to put together a list emerged after a presidential debate in which President Trump was asked to discuss whom he would appoint to the Supreme Court. He mentioned two leading conservative judges, Judge Bill Pryor (11th Cir.) and Judge Diane Sykes (7th Cir.) — but this got Trump and McGahn thinking about who else might be a SCOTUS contender. And so “The List” was born, hashed out in part at a meeting at Jones Day (with the Federalist Society’s Leonard Leo playing a significant role, of course).

But the decision to publicly release the list, unheard of from a presidential candidate, did not come from McGahn or Leo; it came from Trump, 100 percent. “I’d love to take credit,” McGahn confessed, “but it was his political instinct.”

And this was a fateful decision, according to McConnell. The List helped reassure conservatives that a President Trump would make Supreme Court appointments to their liking — and caused conservatives to turn out in high numbers for someone who might not otherwise be their ideal candidate.

Speaking of politics, this is also what drove the elimination of the filibuster for Supreme Court nominees, culminating in the confirmation of Justice Neil Gorsuch. As McConnell put it, “No Republican president could get the kind of nominee we’d want with 60 votes” — and so the historical requirement of 60 votes to break a filibuster was discarded. Gorsuch was then confirmed by a Senate vote of 54–45 (which McConnell quipped was “a landslide compared to Justice Kavanaugh,” confirmed 50-48).

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As for Justice Kavanaugh’s confirmation process, which made the Gorsuch process look like a day at the Eastern Shore, McConnell had this to say: “I was proud of my members for standing up to the mob, standing up for the presumptions of innocence, and confirming Justice Kavanaugh.” He and McGahn showered praise about Senator Susan Collins (R-Maine), who cast a pivotal vote and delivered a speech that McGahn praised as “one for the ages.”

What does the future hold for judicial nominations? McConnell noted that the Senate has now confirmed 29 circuit judges, a record for any administration in this timeframe — and more will be confirmed before the end of the congressional session.

Yes, Senator Jeff Flake (R-Arizona) is not supporting judicial nominees until there’s a floor vote on legislation to protect special counsel Robert Mueller — and since Flake serves on the Senate Judiciary Committee, that effectively stops any nominees who haven’t made it out of the SJC. But it does not prevent Leader McConnell from holding votes on the 30-plus nominees who are already on the Senate floor — and he’s doing just that, filing for cloture yesterday on Jonathan Kobes (8th Cir.) and Thomas Farr (E.D.N.C.).

As for nominations in the new Senate, which will likely feature a 53-47 Republican majority (up from 51-49), McConnell declared that it’s full speed ahead.

“The American people have smiled upon the Senate,” Senator McConnell said. “We have an enhanced majority, and we’ll keep doing this for two more years.”

Disclosure: As I’ve mentioned before, I speak regularly at Federalist Society events, for which I receive travel-expense reimbursement and the Society’s standard honorarium (lower than my normal speaking fee). Also, because I’m speaking on a panel at this year’s Convention, I received free access to Convention events, including last night’s dinner (although in past years I have been able to attend for free as press).

2018 National Lawyers Convention [Federalist Society]
Justice Brett Kavanaugh Got A Rousing Standing Ovation At This Year’s Federalist Society Convention [BuzzFeed News]
McConnell, McGahn Tout Their Success Reshaping Judiciary [Law360 (sub. req.)]
Playbook: November 16, 2018 [Politico]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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