very strong list of potential Supreme Court nominees—including Senator Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list. This commitment matters, and it provides a serious reason for voters to choose to support Trump,” he wrote in a Facebook post.84
The publication of a list of hard-core conservatives in the middle of a general election campaign spoke to how different Trump was from a traditional Republican. Most GOP candidates run to the right during the primaries, only to tack to the center during the general election campaign. Trump’s approach was to stay right where he was but force his opponent farther to the left.
Trump thought his list showed that he was for something. If Hillary Clinton provided her own short list, it would make her appear more radical. She was in a difficult situation, for she had to support Obama’s nominee, Judge Garland, while also signaling that her own nominees would be much farther to the left.85 Reflecting the prematurely triumphant mood of the left, Mark Tushnet of Harvard Law School argued that Democrats controlled the courts and should act like it by becoming even more aggressive in their push to enact a liberal agenda.86
In the final presidential debate, Clinton offered a list not of names but of political requirements for prospective justices. Specifically, she wanted a justice who would back women’s rights and LGBT rights, support Roe v. Wade, and reverse the Citizens United decision to get “dark money” out of politics.87 She often railed against the Citizens United decision, but she was rarely called to account for criticizing a case that decided whether it was a campaign finance violation to publicly screen a film criticizing . . . Hillary Clinton. These desiderata did not form a consistent, principled judicial philosophy so much as a wish list for liberal special interest groups.
When Trump shocked the world by winning, exit polls showed that the Supreme Court was at the top of the list for many voters. The list had played a huge role.
The ensuing transition was fairly chaotic. The chief of staff and White House counsel are usually named the day after the election, but Trump took several weeks to decide who would run his White House. Warring factions led multiple transition efforts, and McGahn was occupied with three recounts and other legal issues.
A week after Trump’s victory, Leo and Bunch were summoned to Trump Tower to winnow the twenty-one names on the updated list to a more manageable list for final vetting. They met with President-Elect Trump, his adviser Kellyanne Conway, and the incoming attorney general, Jeff Sessions. Bannon, Republican National Committee Chairman Reince Priebus, and Ivanka Trump also attended portions of the meeting. McGahn was away on lingering campaign business, including multiple recounts. He was under consideration for White House counsel, and at that meeting Leo, knowing the role would be decisive for the success of Trump’s judicial selection process, argued strongly in McGahn’s favor.
Trump began the meeting by discussing how consequential the Supreme Court issue was for voters. He knew the polling data, which showed that 26 percent of Trump voters said the Supreme Court was the basis of their decision.88 Trump joked that Clarence Thomas’s name received more applause at rallies than his own.
The president-elect told the group he wanted a nominee who was young enough to serve for decades, exceptionally well qualified, not weak, and would interpret the Constitution as the framers intended.89 Further discussion revealed that Trump cared a great deal about credentials, seeking someone at the top of the legal profession. He wanted someone who would not be swayed by the political and social fashions of the day, someone who would be courageous in his decisions. The group discussed the courage and independence that had made Scalia special, and at Leo’s recommendation, Trump even called Maureen Scalia to discuss her husband.
Leo provided a list of six names who he said matched Trump’s criteria well: Colloton, Gorsuch, Hardiman, Pryor, Sykes, and Thapar.
Leo, on leave from the Federalist Society to work on the transition, conducted screening interviews with the short-listers, covering a range of topics. Some of his questions were predictable enough, the kind the judges themselves might ask a potential clerk: Who’s the best judge of your lifetime? Who was the best judge before that? What are the strongest arguments for and against textualism and originalism? He probed their judicial philosophy, asking what made their own philosophy attractive and what was the most difficult question they