influential Federalist Society immediately began to strategize. On law school campuses, the group of conservatives and libertarians is known for hosting debates, which are also a major feature of their national conferences. Leading lights from across the political spectrum have debated, for example, whether district courts have the authority to enter nationwide injunctions, whether the Constitution presumes a moral and religious people, whether the government’s collection of phone records violates the Fourth Amendment, and whether courts are too deferential to legislatures.
In early 2016, the Federalist Society had few connections with the Trump campaign, which was a much smaller organization than the other campaigns and was profoundly anti-establishment. McGahn was one of the few Washington insiders associated with it. The political class—the “establishment”—was downright oppositional. But then, the feeling was mutual.
When Jonathan Bunch, the director of external relations for the Federalist Society, finally spoke to McGahn before the Iowa caucuses, the conversation got off to a rocky start. The soft-spoken Bunch wanted to know about Trump’s views on judges. McGahn responded dryly that Trump had it all under control—in fact, John Sununu was handling the issue for him. The man who had given America David Souter was working on two lists—one of pragmatists with no paper trails who would be easily confirmed, and the other of people whose conservative records made them too hot to handle.
Bunch was speechless. Finally, he asked McGahn what they were going to do with the two lists. When, after a long pause, McGahn said the list of pragmatists would be thrown in the trash and the second list would be jammed through the Senate, Bunch realized that he had been joking about Sununu. McGahn told Bunch that he had been president of his Federalist Society chapter in law school. Everything would be fine. He was a judicial conservative.
Back on the road and headed to the Eastern Shore of Maryland, McGahn was expecting a call from Trump to discuss Scalia’s death. After the loss in Iowa, Trump had soundly defeated all comers in the New Hampshire primary earlier in the week. South Carolina and Nevada were next, and Super Tuesday, when eleven states would select nearly half of the delegates needed to win the Republican nomination, was two weeks away. Many Republican voters’ chief concern about Trump was that he wasn’t actually conservative. He’d been a registered Democrat a few years earlier and had previously been outspoken in his support of abortion. “I am very pro-choice,” he declared on Meet the Press in 1999. His views on judicial philosophy were largely unknown, and he hadn’t given Republican voters reason to trust him.
When Trump called, McGahn told him that he should move cautiously—extend his condolences to Maureen, Scalia’s beloved wife, and get a feel for the situation. As luck would have it, McConnell’s statement against confirming an Obama nominee dominated the news, giving the GOP presidential candidates some breathing room.
Trump and McGahn discussed the high probability that the first question of that evening’s debate would be about Scalia. As it turned out, not only was that the first question, but Trump was the first candidate asked to respond to it. “Mr. Trump, I want to start with you,” began John Dickerson, the even-keeled CBS moderator. “You’ve said that the president shouldn’t nominate anyone in the rest of his term to replace Justice Scalia. If you were president and had a chance with eleven months left to go in your term, wouldn’t it be an abdication to conservatives in particular not to name a conservative justice with the rest of your term?” Trump responded that he would certainly nominate someone and was “absolutely sure” that President Obama would try as well, adding that he hoped Mitch McConnell and the Republican Senate would be able to delay until the election.
And then he did something that turned out to be pivotal: He cited Diane Sykes and William Pryor as the kind of judge he would nominate to fill Scalia’s seat. Sykes, a former member of the Wisconsin Supreme Court, sits on the U.S. Court of Appeals for the Seventh Circuit. Pryor sits on the Eleventh Circuit. Both are known as bright lights in conservative jurisprudence, and attentive voters took notice.
The decision to name names was a result of the phone call with McGahn. Trump suggested he should name specific persons who would be good replacements for Scalia. McGahn agreed, noting that Ted Cruz might have the same idea and they’d love to beat him to it. But whom should Trump name