McGahn says there was no "hesitancy or pause" about nominating Barrett for 2018 vacancy
Washington — Former White House counsel Don McGahn, who led the Supreme Court confirmation processes for President Trump's first two nominees to the high court, said Sunday there was never "hesitancy or pause" on choosing Judge Amy Coney Barrett as a Supreme Court nominee when a vacancy arose in 2018.
In an interview with "Face the Nation" on Sunday, his first television interview since leaving the White House in late 2018, McGahn praised President Trump's selection of Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, calling it an "outstanding choice." Barrett was a finalist to fill Justice Anthony Kennedy's seat on the Supreme Court after he announced his retirement in 2018, but the nomination ultimately went to Justice Brett Kavanaugh.
"I disagree that there was any hesitancy or pause last time," McGahn said when pressed on why Barrett was passed over for the Supreme Court in 2018. "She was a relatively new federal judge. She was placed on a short list. The public found out about the short list because it was publicly announced, so the process has really been transparent. Recall the president, even as a candidate, put out not one, but two lists of judges who could be on the Supreme Court. He's updated it a few times since. So I think that at the time, Brett Kavanaugh was the right person at the right time. And I think Judge Amy Barrett is the right person at the right time now."
At the time of Kennedy's retirement, Barrett had been a federal judge on the 7th U.S. Circuit Court Appeals for just a few months. Prior to her selection by Mr. Trump to the federal bench in 2017, Barrett clerked for Justice Antonin Scalia on the Supreme Court and was a law professor at Notre Dame Law School for 15 years.
The president's announcement of his intent to nominate Barrett to the Supreme Court officially kicked off what is likely to be a swift and highly contentious confirmation process, as Mr. Trump has urged the Senate to confirm Barrett before the November presidential election. Among Democrats' issues with Barrett are her views on Roe v. Wade, the 1973 Supreme Court decision that established a woman's right to an abortion, and the Affordable Care Act, which is being challenged in a case that will be heard by the justices on November 10.
But McGahn said Democrats' assumptions that Barrett would vote to overturn Roe and strike down Obamacare are not "fair assumptions one way or the other."
"We've heard this for decades in Washington, D.C. I remember being a very young law student and hearing this about Robert Bork and hearing this about Clarence Thomas and hearing this about virtually every justice that's been nominated by a Republican," he said. "You cannot guarantee results with judges. What you can guarantee is that they are going to approach the task of judging as a judge. They're not going to substitute their own policy views for the will of the people. They're going to try to play it straight and read the law as passed by Congress and as found in the Constitution, not based upon what they think it ought to be, but what it is."
McGahn also brushed off criticisms that the White House and Senate Majority Leader Mitch McConnell are rushing Barrett's confirmation and should wait until after the election to fill the vacancy.
"I think when the president makes a nomination, he's obligated to do so under the Constitution," McGahn said, adding that there have been election-year nominations to the Supreme Court more than 20 times before. "This idea that somehow this is out of the norm simply doesn't ring true."
While serving as White House counsel, McGahn was instrumental in the confirmations of Justices Neil Gorsuch and Kavanaugh to the Supreme Court. Overseeing the judicial selection process, McGahn also played a key role in the Senate's confirmation of more than 200 of Mr. Trump's nominees to the federal courts, including more than 50 judges to the federal court of appeals.
McGahn praised Mr. Trump for his focus on the federal judiciary, which will likely have a lasting impact.
"If you look at the judges President Trump's put on the bench, it's going to go down in history as a monumental achievement of his presidency," he said.
