William & Mary Law Review Online


Russell Wheeler


Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding up—the process. While he does not hide his Republican leanings—e.g., “President Carter made no Supreme Court appointments ... thankfully”—this is in no way a slash-and-burn propaganda piece.

His article stands for two propositions—first, the process has deteriorated and, second, although, there is blame to go around, Democrats deserve more of it than Republicans. The article also vindicates the always timely aphorism that the plural of “anecdote” is not “data.” McGahn argues primarily from example. Those he cites are illustrative and help flesh out his arguments, but they are less dispositive than they might appear on first blush. Of course, examples are one staple of most any argument—this commentary included—but McGahn relies on them largely to the exclusion of aggregate data.

To be sure, the article is a lightly edited revision of a conversational law school lecture and does not purport to be an academic article weighed down by dense scholarly apparatus. That in some ways is one of its virtues. But even an informal narrative can seek various types of data to illuminate its subject—or acknowledge the limitations of the examples it uses. In Part I of this commentary, I summarize the judicial appointment developments of the last forty or fifty years more fully than does McGahn; in Part II, I unpack what might be charitably called creative history by McGahn and other defenders of the Senate’s shutting down the 2016 Merrick Garland Supreme Court nomination; in Part III, I consider McGahn’s and others’ proposals to help change the nomination and confirmation process; and in Part IV, I summarize briefly what appear to be underlying causes of that broken process and possible consequences of a judiciary populated in no small part by judges who gained office with a minimal popular mandate for their selection.


Responding to Donald F. McGahn II, A Brief History of Judicial Appointments from the Last 50 Years Through the Trump Administration, 60 WM. & MARY L. REV. ONLINE 105, 122-24 (2019).