On Wednesday morning, the well-sourced Axios reporter Jonathan Swan revealed that White House counsel Don McGahn is preparing to step down from his position in the fall. President Donald Trump soon confirmed the news on Twitter. The reaction to this development from some prominent conservative lawmakers could only be described as existential dread.
Senator Chuck Grassley, for example, took the unusual step of venting his anxieties at the president on Twitter. “I hope it’s not true McGahn is leaving White House Counsel,” he wrote, “U can’t let that happen.” The concerns expressed by the chairman of the Senate Judiciary Committee’s are warranted. Arguably, President Trump’s greatest accomplishment has been the rate at which the GOP-led Senate has confirmed his nominees to the federal bench. McGahn has been an instrumental part of that achievement.
McGahn is credited with helping to convince the president of originalism’s value as a judicial philosophy. “The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state,” the outgoing White House counsel said before a Federalist Society audience last November. “Regulatory reform and judicial selection are so deeply connected.”
Nearly two years into his first term, Trump has nominated, and the Senate has confirmed, one Supreme Court justice, 26 appeals court judges, and 33 district court judges, with dozens of nominations—including a second Supreme Court nominee—still pending. McGahn, a member of the Federalist Society, worked in close coordination with the organization to compose a list of qualified originalist candidates for the bench and, according to the New York Times, “has exercised an unprecedented degree of control over judicial appointments.”
As recently as Tuesday, Senate Majority Leader Mitch McConnell secured a deal with Senate Democrats to expedite the confirmation of 15 lifetime appointments to federal court seats, six of which were quickly confirmed by a simple voice vote. The anxiety displayed by Democrats amid the radical remaking of the judiciary along conservatives lines is music to Republican ears. “An entire branch of government is being lost for generations, and Senate Democrats are willfully blind to it,” Hillary Clinton’s former press secretary, Brian Fallon, lamented. “It is pathetic.”
Both Fallon and Adam Jentleson, a former aide to Democratic Senator Harry Reid at the time of his decision to scuttle the filibuster for judicial nominees, demanded that Democrats take a stand of some sort. The fact is that Democrats are powerless to prevent a competent Republican administration in concert with deft GOP leadership in the Senate from moving the nation’s courts substantially to the right, and that is precisely what’s happening.
But not every Republican is thrilled with McGahn’s tenure. Donald Trump’s most indefatigable boosters will not be sad to see McGahn go. They’ve criticized him extensively for reportedly arguing against Trump’s preferred choices for White House roles and for allegedly presiding over an office that leaks to the media. Trump has reportedly clashed with his chief White House counsel, including on one occasion when McGahn threatened to resign if the president tried to dissolve Robert Mueller’s special counsel probe. probe. Initially, the Washington Post reported that the president believed McGahn had “turned on him” when the New York Times revealed that McGahn spent 30 hours speaking with Mueller’s office.
“Don is the most impressive White House Counsel during my time in Washington, and I’ve known them all,” Senator Mitch McConnell wrote. If you are a conservative reformer who supported Trump in 2016 due to the threat that a Clinton presidency posed to the judiciary, write “but Gorsuch” without a hint of irony, and believe the Federalist Society’s contribution to the judiciary to be among Trump’s most significant achievements in office, this is a dark day. If, however, you believe that the White House counsel should be a personal attorney and not the lawyer for the White House, your feelings about McGahn’s departure are decidedly more mixed. That’s the distinction between a movement dedicated to principle and a cult of personality. It is encouraging to see how many Republicans are so dismayed by the prospect of a post-McGahn Trump White House. It is a sign that principle, not personality, still reigns in the GOP.
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