White House Counsel Reveals The Secret Of Trump’s Judicial Selection Process

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Kevin Daley Supreme Court correspondent
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White House Counsel Don McGahn, President Donald Trump’s chief advisor on judicial selection, gave rare public remarks at the Conservative Political Action Conference in Washington, D.C., Thursday, where he told a friendly audience that Trump is committed to filling the bench with strident conservatives.

McGahn revealed that the White House treats judicial selection as an integral part of the deregulatory agenda, as the president is particularly keen on nominees who will police federal agencies.

“[Trump] ran on the idea that the judicial branch needs a little help,” McGahn said. “He’s delivered on those promises.”

As in all administrations, McGahn said judges are selected on the strength of credentials and temperament. Trump, however, is especially interested in selecting nominees who have shown their commitment to conservative legal principles in difficult circumstances, to ensure his nominees “won’t change and turn into someone else” after confirmation.

He alluded to a phenomenon sometimes known as the “Greenhouse effect,” under which Republican judicial appointees align with liberal jurists as their careers progress. Republicans sometimes attribute this pattern to informal social and professional pressures, emanating from bar associations, law schools, and the editorial pages of major newspapers.

“We look for things in a person’s background that show a commitment to the rule of law,” he said.

McGahn said Justice Neil Gorsuch’s record in the federal courts was replete with such examples. He specifically mentioned a concurring opinion Gorsuch wrote in August 2016, criticizing a judicial doctrine known as Chevron deference. Under Chevron, courts generally exercise minimal supervision over the decisions and interpretations of federal agencies.

“There’s an elephant in the room with us today,” Gorsuch wrote in the opinion. “We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron…permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Criticism of Chevron and similar cases has lately become a flashpoint for controversy in conservative jurisprudence. The Trump administration sees deconstructing Chevron as an essential component of the deregulation effort.

“Judicial selection and the deregulatory agenda are flip sides of the same coin,” McGahn noted.

McGahn was not asked about the ongoing Russia inquiry or former staff secretary’s Rob Porter’s abrupt resignation following allegations of spousal abuse emerged in the Daily Mail. McGahn featured prominently in both controversies.

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