White House counsel Donald McGahn on Friday described how he jokingly terrified Jonathan Bunch, executive vice president on the Federalist Society, during the presidential primary season in 2016.
Speaking at the Federalist Society's annual convention in Washington D.C., McGahn recalled how, as a member of Donald Trump's presidential campaign in Iowa, he spoke by phone with Bunch and laid out how candidate Trump was preparing to pick nominees for future Supreme Court vacancies.
McGahn told the laughing audience that he said, "'We actually have somebody in the campaign who’s going to help us,' and Bunch asked, 'Who is it?'"
McGahn recounted that his stunning answer was, "'Oh former chief of staff to President Bush, John Sununu. He has a lot of experience.'"
Sununu advised President George H.W. Bush on Supreme Court picks, and is blamed by the Federalist Society for disappointing nominees whom they see as liberal judicial activists rather than textualists and originalists whom conservatives want. Few names if any could be better calculated to alarm the Federalist Society vice president.
McGahn recounted Bunch's deepening horror on the phone call. "'So there is this just deafening pause on the other end of the phone. And being in Des Moines, I thought maybe the phones went down even though it was my cellphone. So I hear on the other side this kind of throaty, 'Well it’s good that you have someone helping.' I said, 'Yeah it’s going to be great, he has experience and a proven record and we asked him to come up with a couple different lists and the first list we want mainstream folks, not a big paper trail, and the kind of folks that will get through the Senate and will make us feel good that we’ve put some pragmatic folks on the bench.'"
He added: "So the voice on the other end of the line said; I could just hear this sort of gasp. So I said, 'We’re going to have a second list and the second list we’ve asked him to put together some folks kind of too hot for prime time; the kind that’d be really hot in the Senate, probably people who’ve written a lot, we’d really get a sense of their views, and we want to make sure they’re the kind of people, you understand, the kind of people that make some people nervous.' And he said, 'Oh okay, well two lists, what are you going to do with each list?'"
Finally, McGahn said he put Bunch out of his misery, answering, "'I said, “Well the first list we’re going to throw in the trash and the second list that is what we’re going to put before the U.S. Senate because I know [Majority] Leader [Mitch] McConnell is going to get it done.”'
Leonard Leo, Trump’s adviser on Supreme Court and judicial selection, told the Washington Examiner on Saturday that the McGahn-Bunch conversation took place some weeks before Supreme Court Justice Antonin Scalia died, an event that put the GOP candidates' plans for judicial nominations at the center of the campaign.
"No such lists were ever created, and these imaginary lists had nothing to do with what was released publicly during the campaign,” McGahn told the Washington Examiner in an email.
Leo said that the serious thrust of McGahn's speech on Friday was the importance of nominating textualist and orignalist judges as the Trump administration pushes to reform the administrative state.
Trump on Friday released a new shortlist of candidates for future Supreme Court vacancies that included five new names: 7th Circuit Court of Appeals Judge Amy Coney Barrett, Georgia Supreme Court Justice Britt Grant, D.C. Court of Appeals Judge Brett Kavanaugh, 11th Circuit Court of Appeals Judge Kevin Newsom, and Oklahoma Supreme Court Justice Patrick Wyrick.
"They have a demonstrated commitment to originalism and textualism … there’s nothing unknown about them," McGahn said of the new names on the list during his Friday remarks at the Federalist Society conference. "What you see is what you get.”
Justice Neil Gorsuch was not on Trump's initial shortlist for the Scalia vacancy but was an addition in a second list, which may make the Friday additions to Trump's list worthy of a closer look.
"I’m very fortunate to serve a president who is very committed to what we are here, which is nominating and appointing committed originalists and textualists," McGahn said at the Federalist Society event. "He’s made good on what he said."
Editor's note: This story has been substantially recast to reflect information that the reported phone conversation took place before the death of Justice Scalia, and that McGahn and Leo have indicated there is no connection between the anecdote and later short lists for the Supreme Court vacancy that his death created.