This column by ACRU General Counsel Ken Klukowski was published November 21, 2017 by Breitbart.
WASHINGTON, DC—White House counsel Donald McGahn revealed in a major speech to the Federalist Society on Friday the genesis of President Donald Trump’s plan to create a conservative legacy on the federal courts.
McGahn delivered the Barbara K. Olson Memorial Lecture for 2017. “When Leonard [Leo] called and asked if I could do this lecture, I think I said, ‘I think you dialed the wrong number,’” McGahn told the crowd, noting that in previous years, the lecture has been delivered by such towering figures as Chief Justice John Roberts, Justice Antonin Scalia, Justice Neil Gorsuch, Vice President Dick Cheney, and Attorney General Michael Mukasey.
“One of those names is really different from the rest,” he noted when his own name was added to the list.
In a speech laced with self-deprecating humor and a dry sarcasm that at times had the buttoned-down gathering of lawyers howling in laughter, McGahn, who has been with President Trump since the beginning of his campaign, recounted his own long history with the Federalist Society, which was a small but feisty organization of conservative and libertarian lawyers when McGahn first attended its convention around 1995.
The Federalist Society now boasts 70,000 members nationwide and is a juggernaut of federal judges, top lawyers, law professors, and law students dedicated to the proposition that the Constitution, as with all federal laws, should be interpreted according to the original public meaning of its words. McGahn has brought his more than 20 years of dedication to that legal philosophy of originalism to his West Wing office.
McGahn reminisced about when the Trump campaign connected with Federalist Society leadership to discuss appointing federal judges, saying that he was in a hotel looking out over “the iconic Des Moines skyline” in Iowa, then quipping, “If you do enough campaigns, it’s iconic,” to still more laughter.
He detoured to talk about what it was like working on a campaign that coastal elites considered a long-shot. “It caught on with the voters very quickly but didn’t quite catch on with the political class,” noted.
“Frankly, still hasn’t, and we’re very proud of that,” he said with obvious glee. “You’re laughing now, but were you laughing then?” he added through the audience’s boisterous reaction.
“I was!” he blurted with a grin.
Turning to judicial selections, he gave a comedic recounting of when a top Federalist Society staff member first reached out to him to discuss judicial selections, a relationship the organization was trying to establish with all the campaigns to inform their evaluation of potential judges.
McGahn told the staffer that the campaign was working with “former White House chief of staff John Sununu,” which horrified the caller because Sununu is infamous for having recommended the appointment of Justice David Souter, considered the top example in U.S. History of someone who was sold to the Republican Party as a conservative but proved to be a staunch liberal for his entire 20 years on the High Court.
“He has a lot of experience,” McGahn had said to a staffer, noting that his words were followed by a “deafening pause on the other end of the phone.”
Although McGahn never said so explicitly, it seems the entire narrative about Sununu was a joke, invoking the ultra-establishment moderate to entertain his stridently conservative audience.
Speaking of Sununu, McGahn explained, “We asked him to come up with a couple different lists.”
One would be “mainstream folks, not a big paper trail, the kind of folks that will get through the Senate and make us feel good that we put some pragmatic folks on the bench,” he said.
“On the other end of the line I could just hear this sort of gasp,” McGahn added as the audience erupted again in laughter.
“And we’re going to have a second list,” McGahn went on, speaking of “some folks, kind of too hot for primetime, the kind that would be really hot in the Senate, probably people who have written a lot. We get a really good sense of their views … the kind of people who would make some people nervous.”
The Federalist Society staffer had asked what they were going to do with both lists.
“The first list we’re going to throw in the trash, and the second list that is what we’re going to put before the Senate because I know Leader McConnell is going to get it done,” McGahn answered as the entire gathering burst into thunderous applause.
He went on to talk about President Trump’s list of potential Supreme Court nominees that he released during the campaign. Releasing such a list “never had been done before,” he noted.
The reaction of Washington’s elites at the time in March 2016 was predictable. “Oh, it’s over, can’t do that,” he said of their reactions. “Got to move to the middle. Especially on that judge thing. Don’t want to scare people.”
But Donald Trump has since become the 45th president of the United States. He selected Justice Gorsuch from his list, who is quickly proving to be one of the most committed originalists ever appointed in modern times. And the president is stocking the federal trial courts and appeals courts with dozens of other jurists committed to interpreting the Constitution according to its original meaning.
“I’m very fortunate to serve a president who is very committed to what we are committed to here,” McGahn told the crowd with obvious joy, “which is nominating and appointing judges who are committed originalists and textualists.”