White House Counsel Don McGahn, the former long-haired campaign finance lawyer, has become an effective, if unlikely, leader of a judicial juggernaut destined to be one of President Donald Trump’s most enduring legacies.
Federal judges are appointed for life, and McGahn has captained a vetting process that has moved faster than even the renowned judge-picking machine of Ronald Reagan’s administration in the 1980s. Trump announced Wednesday morning on Twitter that McGahn will be leaving in the fall after the Senate acts on Supreme Court nominee Brett Kavanaugh.
Working closely with conservative advocates and Senate Majority Leader Mitch McConnell, McGahn was crucial to Trump’s swift choice of two Supreme Court nominees (Kavanaugh last month and Neil Gorsuch in 2017) and winning Senate confirmation of 26 appeals court judges.
Although the nine-member Supreme Court draws most public attention, the country’s 13 appeals courts (the second tier of the three-level US judiciary) can significantly impact the law in American life. The high court takes fewer than 1% of the petitions that reach its doorsteps.
Republican administrations in the last half century have made the restocking of the federal courts a priority – more than Democrats have – as they have sought to limit or outright reverse liberal-era precedents, such as those establishing abortion rights, allowing racial affirmative action and limiting religious displays in public places.
McGahn has followed suit but with more focus and speed. He has been assisted by McConnell, similarly driven to put his mark on the federal bench and by contemporary Senate rules that make it harder for the party in the minority – currently Democratic – to block nominees. The Kentucky Republican prevented Senate action on President Barack Obama’s 2016 nomination of Merrick Garland to the Supreme Court.
McGahn has pushed for young, reliable conservatives – they have been overwhelmingly white and male – and has conferred regularly with conservative advocates, such as the Federalist Society’s Leonard Leo, in administration choices. As Trump winnowed the field of candidates to succeed the recently retired Justice Anthony Kennedy, McGahn helped steer the choice to Kavanaugh.
As he has explained his job as White House counsel to audiences, McGahn has emphasized the screening of judges. He said the Trump administration has brought a new emphasis to the vetting, tied to its effort to curtail government regulation of business, for example, by agencies covering the environment, workplace safety and consumer protection. In February, McGahn told a conservative conference that Trump wanted judges who had a record of scrutinizing “the regulatory apparatus.”
“One of the things we interview on is their views on administrative law,” McGahn said, adding, “This is different than judicial selection in past years.”
Of his effort to find judicial candidates who would align with Trump priorities, he said, “It’s not a coincidence. It’s part of a larger plan.”
Even with his judiciary successes on behalf of Trump, McGahn has clashed with the President, including over Trump’s attempts to derail the Justice Department’s investigation of Russian interference in the 2016 US election and any collusion with the Trump campaign. That strained relationship resurfaced earlier this month with the disclosure that McGahn has cooperated extensively with special counsel Robert Mueller’s probe, participating in several interviews.
McGahn, 50, is a native of New Jersey who earned his bachelor’s degree at Notre Dame and his law degree at Widener. In private practice, he specialized in election law and then became Trump’s campaign counsel for the 2016 presidential bid.
McConnell called the news of McGahn’s impending departure “sad news for our country.”
“Don is the most impressive White House Counsel during my time in Washington, and I’ve known them all,” McConnell said in a statement. “Don’s significance to the judiciary, the White House and the nation cannot be overstated, and I look forward to his continued efforts on behalf of our country.”