WASHINGTON, DC – Fox News Sunday this week profiled Leonard Leo, who assists President Donald Trump and White House Counsel Don McGahn in the historic task of filling a record number of judicial vacancies. Leo predicts that President Trump will have at least two more opportunities to appoint originalists to the U.S. Supreme Court, which could define his presidency as a lasting legacy for the nation.
President Trump makes his own decisions picking federal judges, and McGahn is the senior adviser most involved in presenting those choices. But the president must fill almost 170 judicial vacancies — a historic high number — and McGahn has countless duties as the president’s top lawyer, daily engaged in top-level decisions on the full range of domestic and foreign policies. He puts out the innumerable fires that any leading lawyer in the White House confronts as he helps manage the activities of 2.7 million federal employees spending a budget of $4 trillion leading a nation of 326 million citizens.
With all those demands, who advises McGahn on judges? While he has deputies and associates in the White House Counsel’s Office and works with a team in the Office of Legal Policy at the Department of Justice, no one plays a larger role in equipping McGahn to advise the president on judges than Leo, the executive vice president of the Federalist Society.
Headquartered in the nation’s capital, the Federalist Society for Law and Public Policy is the nation’s flagship organization for advancing and restoring an originalist interpretation of the U.S. Constitution, comprised of almost 70,000 lawyers, law students, and supporters.
Originalism is “the idea that the words of the Constitution should be interpreted as they were commonly understood when they were written,” FNS host Chris Wallace explained in a voice-over during the interview, summing up this philosophy of studying the Constitution’s text, structure, and history to determine its original meaning.
“The job of a judge is to enforce the Constitution as it is written,” Leo told Wallace, explaining that appointing originalists to the federal bench is what converts originalism from an ivory-tower theory to a governing philosophy, as judges apply an originalist understanding of the Constitution to each case before their courts.
Originalism “advances the cause of limited constitutional government,” Wallace continues with the audience. The Constitution established a federal government of strictly limited powers, leaving all other matters to the states or to the people directly.
This debate over originalism is hardly academic, as Wallace makes clear that the reason Fox News is airing this interview segment is because there might be an imminent vacancy on the U.S. Supreme Court, possibly Justice Anthony Kennedy, who has served since 1988.
Brushing aside Wallace’s mention of the D.C. chatter that Leo is President Trump’s “Supreme Court whisperer,” Leo quipped, “I don’t remember ever whispering, and I know he’s never whispered.”
Leo is always quick to affirm that McGahn is President Trump’s primary adviser on judges, both by virtue of the high position that the White House counsel holds and also because McGahn has worked for decades as a lawyer and a government official on advancing originalism and textualism in American law, as discussed at the annual CPAC convention this year.
But Leo plays an essential role assisting the president and McGahn identify the right judicial candidates and navigating the process of nomination and confirmation, running a gauntlet fraught with political perils where an extra pair of skilled hands are enormously helpful.
That was certainly the case with Justice Neil Gorsuch, who proclaimed at the Scalia Memorial Dinner at the Federalist Society’s national convention in November 2017, “Tonight, I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court,” to thunderous applause from Leo’s organization.
McGahn was also an honored guest at that dinner and a marquee speaker at the convention, giving the Barbara K. Olson Memorial Lecture in 2017.
There is a significant chance that McGahn’s and Leo’s skills will again be put to the test on developing options for President Trump.
“The odds are high that over the next … several years you’re going to see a couple more vacancies” on the Supreme Court, Leo explained, affirming Wallace’s question that there is “over 50-50” odds of at least two vacancies.
“If President Trump gets to nominate another justice, that will move a Court that is often split over to solidly conservative,” Wallace editorializes.
Touring the Federalist Society’s offices in Washington, DC, Wallace notes that hanging outside Leo’s office is an enormous picture of Justice Antonin Scalia’s chambers, the famous originalist justice who was a good friend of Leo, and whose sudden death in 2016 made the Supreme Court a central issue in the presidential race, culminating with Gorsuch’s nomination after President Trump’s inauguration.
“This is the originalist temple,” Leo explained to Wallace, gazing at the oversized photo of Scalia’s chambers, richly adorned with law books and hunting trophies.
“You’re dealing with fundamental transformation of the federal bench,” Leo said when discussing President Trump’s resolute commitment to appointing originalists and textualists to the nation’s courts, advised by McGahn and his team.
“It is about as inspiring and motivating as anything has been in my professional life,” added Leo, reflecting on his role assisting President Trump, McGahn, and others involved in the appointment process. “It’s really incredible.”
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.