Bench Memos

A White House Counsel for the Ages

Today the White House confirmed that White House Counsel Don McGahn will be leaving his position shortly after the expected confirmation of Brett Kavanaugh to the Supreme Court. His tenure has been momentous. Most visibly, following the confirmation of Neil Gorsuch and assuming the probability that Kavanaugh is confirmed, McGahn will have shepherded the selection and confirmation to the high court of two of the best qualified, committed constitutionalists on the federal bench—judges who recognize that the best way unelected judges can safeguard representative democracy is to interpret the Constitution according to the original public meaning of its text.

At least as remarkable has been that, even amid the difficult process of filling two Supreme Court vacancies, 59 other Article III judgeships have been filled to date. This number includes the successful confirmation of 26 circuit court judges, which already surpasses by four the previous record for a president’s first two years (22 under the first President Bush) for court of appeals confirmations—and we are still almost five months away from the two-year mark of the Trump administration. Equally important, these circuit judges have with unprecedented consistency been very high caliber nominees who share a commitment to originalism and textualism.

Collectively, whether looking at the Supreme Court specifically or at federal judgeships generally, no administration since the advent of modern constitutional debate has had a more impressive track record on judicial nominations than the Trump administration with Don McGahn’s stewardship. And consider that this occurred against the backdrop of a razor-thin Republican majority in the Senate, with Senate Democrats doing all they could to obstruct the process through the unprecedented abuse of cloture and blue slips.

McGahn has also helped to oversee President Trump’s much needed reining in of the administrative state. For years, the federal bureaucracy has been aggrandizing the power of its own unelected officials, too often acting like a virtual “fourth branch” of government and dealing a blow to the tripartite government our Constitution actually authorizes. Since last year, the administration has pursued a number of measures to curtail that trend, perhaps most prominently its efforts to roll back the notoriously profligate issuance of regulations by agencies, both through executive orders and by bringing to life the largely unused Congressional Review Act. Also significant: ending the use of court settlements and consent decrees to benefit third-party organizations not involved in litigation or to find back-door methods to impose nationwide rules; reclaiming accountability so that federal officials who underperform or engage in misconduct can more easily be removed; reducing inefficiency and increasing transparency in the relationship between labor unions and the civil service; and shifting the selection of administrative law judges from career bureaucrats to agency heads directly accountable to the president.

Increasing accountability to the chief executive and other elected officials means increasing accountability to the people. Appointing originalists and textualists to the federal bench bodes well for preserving the individual rights and government structure on which our freedom depends for protection. All of this is a victory in the making for the Constitution and the rule of law. Don McGahn can stand proud for his role in helping to bring it about.

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