Trump’s own participation in the selection process varies based on the court. For the Supreme Court opening, he personally interviewed four candidates, making his final decision after meeting each of them once. For circuit and district judges, the President signs off on the final decision after the interview and vetting process is complete. But Trump and his team are in sync on what they want in a nominee: judges who are originalists and textualists, meaning they interpret laws based on what they say is the original intent of the Constitution’s framers and based purely on the text, without considering shifting social values or paying much heed to legislative history. They also want judges who worry about regulations and what they see as the increasing power of unelected bureaucrats, a phenomenon McGahn calls the administrative state.
Some of Trump’s picks have a history of inflammatory statements or decisions that might have been disqualifying under the vetting procedures used by previous Republican Administrations, according to Nan Aron, head of the liberal group Alliance for Justice. “The standards are so much lower now,” she says. In fact, provocation is part of the point. In one of his rare public appearances–a speech before the Federalist Society in November at Washington’s Mayflower Hotel–McGahn joked that his team would work with two lists of potential nominees. The first list contains “mainstream” and “pragmatic folks.” The second list, he said, includes judges who are “too hot for prime time … The kind of people that make some people nervous.”
“The first list we’re going to throw in the trash,” McGahn said to laughter and applause. “The second list, that’s the one we’re going to put before the U.S. Senate, because I know leader McConnell is going to get it done.”