The following is a transcript of an interview with former White House Counsel Don McGahn that aired Sunday, September 27, 2020, on “Face the Nation.”
MARGARET BRENNAN: Welcome back to FACE THE NATION. I want to go now to former White House counsel Don McGahn. He joins us from Owings Mills, Maryland. Thank you for joining us.
DON MCGAHN: Thanks for having me.
MARGARET BRENNAN: Sure, you know Amy Coney Barrett. You vetted her. You put her on the list of judges in the first place that was considered by President Trump, but he passed her over last time and went with Brett Kavanaugh. What gave you pause then? And are you certain she will be confirmed this time?
MCGAHN: I think- I think the president has made an outstanding choice in nominating her. He promised justices in the mold of Antonin Scalia, a great justice. She clerked for Scalia, became a protege of his and I think she’s a fantastic judge. There’s no reason why the Senate shouldn’t confirm her. And I think she’s already had a distinguished career on the bench and it will continue on in the Supreme Court.
MARGARET BRENNAN: But what gave pause last time? I mean, sometimes it’s hard to predict how judges will actually rule on individual cases. But is there something that we should be scrutinizing here in terms of her stance? I mean Democrats are assuming she’s against Affordable Care and against Roe versus Wade? Are those fair assumptions?
MCGAHN: I don’t think they’re fair assumptions one way or the other. We’ve heard this for decades in Washington, D.C. I remember being a- 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. 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. I disagree that there is any hesitancy or pause last time. 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 Amy- judge Amy Barrett is the right person at the right time now.
MARGARET BRENNAN: Why is Senator McConnell rushing this through now? Some people are speculating it’s because he thinks Trump might lose or that Republicans want her vote there as the debate over Obamacare begins. Why rush it?
MCGAHN: I disagree that it’s being rushed. I think it actually- if you look at historical precedent, is following regular order. One goes back into history, one goes close to–
MARGARET BRENNAN: That’s a pretty short timeline.
MCGHAN: Most- well, Frankfurter went through 12 days start to finish. You can say, well, that’s ancient history. What about modern times? John Paul Stevens who has become a hero of the left, went through 16 days, start to finish. Sandra Day O’Connor went through in 33 days, start to finish and Ruth Bader Ginsburg went from 42 days, start to finish. So there is time to do it. It is not outside of the norm.
MARGARET BRENNAN: You don’t think it’s about the election?
MCGHAN: Well I certainly think that there’s an imminent election and obviously everyone’s talking about the election, but I think when the president makes a nomination, he’s obligated to do so under the Constitution. This has happened 29 times in our history where there’s been an election year nomination, and it’s happened before. It’ll probably happen again. And even Justice Kennedy, who many hold up as a- as a model justice was, was confirmed and appointed in an election year in 1988 when President Reagan wasn’t even on the ballot. So this idea that somehow this is out of the norm simply doesn’t ring true.
MARGARET BRENNAN: So when you were at the White House, this was your project. And looking at Pew Research–
MCGAHN: One of many, but yes.
MARGARET BRENNAN: One of many. Fair. But President Trump- we’ll get to that, but President Trump has appointed more federal appeals court judges to date than any recent president. He’s not sitting around reading legal briefs. As you talked about, there’s a list that was put in front of him of possible choices. You’ve been working with Mitch McConnell to really have this be a conveyor belt that has helped to confirm these in- in a high number. But do you worry that that kind of churn in this process can- can undermine faith that- that the court is above the political fray?
MCGAHN: Well, the court ought to be above the political fray. That’s the point of the court. We have three coequal branches and the court is supposed to be removed from it. It’s done in a variety of ways. One is life tenure. Two is the confirmation process itself. And the president can’t simply pick. It has to do with the advice and consent of the Senate. But I think if you look at the judges President Trump’s put on the bench, it’s going to go down in history as a- as a monumental achievement of his presidency. He has put a number of- of judges on who are mentally qualified, went to top schools, did well in the schools. They went to the clerk at the Supreme Court themselves, they’re circuit judges, had a stellar careers–
MARGARET BRENNAN: It’s your list. I know you like it.
MARGARET BRENNAN: I said it’s your list. I know you like it. But so- so bigger picture, though,–
MCGAHN: Doesn’t change the credentials, though. I mean just because I like–
MARGARET BRENNAN: I’m not saying that. No.
MCGAHN: Great. But if you look at the facts, it’s fantastic judges. There’s really no arguing with the- with the merit of the- of these nominees.
MARGARET BRENNAN Your name appears in the Mueller report 529 times.
MCGAHN: And Amy Barrett’s name appears nowhere in the Mueller report.
MARGARET BRENNAN: Sure.
MCGAHN: And she just got nominated for the Supreme Court.
MARGARET BRENNAN: I understand, but we’re talking about justice and judges. Given the president’s challenges with the law and his obligation under the Constitution to take care that the law be faithfully executed. Do you think- there’s a contradiction here? Do you think he deserves four more years in office?
MCGAHN: I think if you look at his record, he does. He had the economy going wonderfully, he made a number of promises on the campaign trail that he kept.
MARGARET BRENNAN: You will vote for him?
MCGAHN: One is his judicial selection, which he’s done. He’s set a record number of judges on there- on the circuit courts and this really matters. And look, there’s been since the ’16 election, he has made this a critical issue.
MARGARET BRENNAN: Yeah.
MCGAHN: He was very transparent on it. It really helped in the 2016 election. And there’s been an intervening election and two Supreme Court nominees and confirmations and those who supported Trump’s judicial nominations did pretty well on re-election.
MARGARET BRENNAN: Yeah.
MCGAHN: Those who opposed did not.
MARGARET BREANNAN: I’m going to–
MCGAHN: So the people have spoken not once but twice.
MARGARET BRENNAN: I’m going to take that as a yes for you, from you that you’re voting for him again. All right, Don McGann, thank you this morning for your insight. We’ll be right back.
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