him. Representative Tom Price of Georgia, a physician whom Trump would eventually tap to run the Department of Health and Human Services, wanted to come, but he wasn’t invited. The only invited official who had not yet endorsed Trump was Senator Tom Cotton of Arkansas. Other key players at the reception included former Speaker of the House Newt Gingrich; Jim DeMint, the president of the Heritage Foundation and a former senator; and Leonard Leo. McGahn laid the groundwork for the meeting by explaining to Trump the importance of the Federalist Society in the legal community and by asking Leo to come to the meeting with the names of some judges who would be worthy replacements for Scalia. Leo brought a card with a handful of names, and McGahn put it in his breast pocket.
During the meeting, Trump asked everyone what he thought of his naming names during the debate and whether publishing a longer list was a good idea. The guests were surprised, but they approved, and Trump asked for their help. Afterward, he met privately with McGahn and Leo, and they discussed Souter and Roberts. Trump said he didn’t like Roberts’s Obamacare decision because the chief justice “made it up.” Then Trump asked Leo for suggestions for his list, and McGahn pulled Leo’s card out of his pocket. Trump asked if he could keep it, and he did. (After the election, when Leo met with the president-elect at Trump Tower, Trump pulled the card out for reference. He had written “Paul Clement?” on it with a Sharpie, a reflection of how many people had urged him to consider George W. Bush’s solicitor general.)
Immediately after the meeting at Jones Day, Trump went to the construction site of the Trump Hotel on Pennsylvania Avenue for a press conference. The last question was whether he had a litmus test for Supreme Court nominees. He said he’d be looking for smart conservatives. Then he announced he’d be “making up a list” of seven to ten people and “distributing that list in the very near future.”78 There was no going back.
When Jim DeMint returned to the Heritage Foundation, he immediately asked for help from John Malcolm, the head of Heritage’s Meese Center for Legal and Judicial Studies. Malcolm was concerned about making sure Heritage didn’t appear to be playing favorites with its advice, so he decided to publish the list for everyone, making it equally available to Bernie Sanders and Donald Trump. DeMint gave Malcolm relatively free rein, insisting only that the list be produced quickly. It was. Malcolm published a non-exclusive list of eight potential Supreme Court nominees just nine days later, on March 30.79
Trump’s team was also working quickly, but it was a daunting task. Determining who had the proper judicial philosophy, a clear record, and the courage of his convictions required combing through a multitude of opinions.
In addition to Leo, McGahn was assisted in finding candidates and reading their opinions mainly by his Jones Day associate James Burnham. People were eager to promote their favorite judge, so the recommendations poured in. One of the more valuable ones was Tom Hardiman, a Third Circuit judge who had gone to law school with McGahn’s law partner, Richard Milone. Leo also considered him a good candidate, and Trump’s sister, Hardiman’s colleague, praised his collegiality and work ethic. Her disagreement with many of his opinions may have been the perfect recommendation.
The team talked to the judges for whom candidates had clerked and to those who had clerked with them. McGahn was particularly interested in what candidates had been like in their mid-twenties, the stage of life when he believed most people’s views solidified. Justice Kennedy was eager to help, offering the names of at least six former clerks who were in his “top five.” Kavanaugh was one of them. While Kennedy called his other clerks good or excellent, he tended to describe Kavanaugh as “brilliant.”
To enable his team to arrive at a thorough and reliable evaluation of each candidate’s judicial philosophy, McGahn required that he or she already be a judge. A lawyer can always distance himself from an argument, even an aggressive one, made on behalf of a client. But to sign one’s name to a judicial opinion takes courage and conviction. Leo helped confirm that candidates had been committed to conservative legal principles over the long haul and were not just opportunists showing up now that Obama’s presidency was ending and a Supreme Court nomination was in the offing.