tv 2017 National Lawyers Convention - White House Counsel Mc Gahn CSPAN November 18, 2017 2:03am-2:52am EST
annual -- is this on? yes, ok. welcome to the 15th annual barbara olson memorial lecture. i am eugene meyer, president of the society. this memorial lecture started as many of you know shortly after 9/11. ted nelson's inaugural lecture reminded us of what it means to be an american, how are our legal tradition is a critical part of our identity as americans. bo ted was here today. and barbara understood this connection. we want this lecture to remind a -- to remind lawyers of it. so that they foster legal principles that advance freedoms, personal responsibility, and the rule of law. other lecturers have included justice scalia, chief justice roberts, vice president cheney, judges can star, robert burke, edith jones, douglas ginsburg, now justice neil gorsuch, former attorney general michael mukasey, peter teel, john
allison, and senators tom todd. and then sask. -- and ben saas. that brings us to today's lecture. it is my honor to introduce white house counsel don mcgann. before the council office, he served as the chairman of the ftc and was a partner at jones day. before that, at patton dogs -- patton boggs. all that prior to joining term campaign as their counsel. he earned his ba from notre dame. don has in common with barbara olson an entrepreneurial spirit that he has brought to everything he does. and like barbara, he has made his own way, often raising and approaching questions in an unconventional way and advocating things simply because he thought they were right. one of his major interests has been judges. another is the administrative state.
about which, as this conference shows, as we heard last night, there is increasing discussion and debate. it is typical of don, like barbara, who takes the lead in such critical discussions and battles. it is also typical but he does -- that he does it with energy, zest, and good humor. in his work with judges and administrative law, don is committed to the constitution and its structure and committed through his public service to advancing the form of government, that, to put it in his boss's words, makes america great. i'm delighted to welcome don mcgann at the 2017 barbara olson lecturer. [applause] mr. mcgahn: thank you very
much. i think i am going to quit while i am ahead. [laughter] thank you. the reception will be across the hall. [laughter] it is really an honor to be here, to be invited to the barbara olson lecture. i knew barbara. i believe i met her at this hotel during a federal society convention like this one many years ago. when leonard called and asked if i could do this lecture, i think i said, i think you dialed the wrong number. because i looked it up and he listed all the folks who have given this lecture over the years. when you hear names like scalia and roberts and gorsuch, and then me, one of those names is really different than the rest. [laughter] mr. mcgahn: i will just give a hint, i do not have any problem with truck drivers. [laughter]
[applause] mr. mcgahn: people in the media are wondering what that was about. [laughter] mr. mcgahn: the federal society is really an amazing organization. i have been privileged to be a part of it for many years and watch it grow. i remember the first time i attended one of these conferences. it was 1995. i had moved to washington dc and i did not know anyone. very few people would talk to me. now i know a lot of people and very few people still actually want to talk to me. [laughter] mr. mcgahn: i met a number of people over the years. i remember meeting someone else who had just moved to d.c., and the conversation went like this. so, you just moved to d.c.? what were you doing before? i was a law clerk. who did you clerk for? alito.
ok, third circuit. where did you go to school? harvard. undergrad or upper grad? both. this was a cost up. -- this was accosta. now he is secretary of labor. for lawyers out there, you never know who you will meet. keep in touch. [laughter] mr. mcgahn: someday the person you talk to is the white house counsel. and the president is looking for the secretary of labor. you never know. [laughter] [applause] i have not gotten to the funny parts yet. [laughter] mr. mcgahn: another thing i remember, this is the first conference, the lesson you never know who you were going to me. -- who you are going to meet. i managed to stumble into the banquet dinner, the predecessor of what we had last night. i recall, it was across the hall, there was plenty of her in -- plenty between the tables to
navigate. the society was not as large as it is now. i was looking around and i heard someone say, there is an empty chair with us. someone grabbed me by the co-and coat i sat down. i said, you are the guy from the reagan administration? he said, yes. we go around and introduce -- i was at the illuminati table. [laughter] mr. mcgahn: someone stands up and said hi, i'm ed meese. i thought, you look just like ed meese. [laughter] mr. mcgahn: i was so excited. i went home. i was only in d.c. for two weeks. i called my mom at 11:00 at night and she was afraid i was in jail. [laughter] mr. mcgahn: then she realized i would not be able to make the call. i told her about it. i thought every weekend in washington dc was going to be just like that. [laughter] mr. mcgahn: it was not. not even close. so, but here we are.
the past several years has been a very interesting journey. it has been a privilege to be part of a presidential campaign. and to have the honor of being named counsel to the president of the united states. it all began in iowa, as most things do and presidential -- in presidential campaigns. the memory i have of iowa was standing in my hotel room in des moines looking out the window at the iconic to mowing skyline -- [laughter] mr. mcgahn: if you do enough campaigns, it is iconic. [laughter] mr. mcgahn: i remember i had traded voice messages with someone from the federalist society who will remain nameless so i do not embarrass jonathan bunch. [laughter] mr. mcgahn: we finally connected on the phone. i had heard they were attempting to figure out how to get in touch with the trump campaign. they had managed to get in touch with all the other campaigns,
but the trump campaign was lean and mean. it caught on with the voters quickly, but did not catch on with the political class. frankly, still hasn't. we are very proud of that. [laughter] [applause] mr. mcgahn: it's funny now. but were you laughing then? [laughter] mr. mcgahn: i was. [laughter] mr. mcgahn: i have substance coming up. [laughter] mr. mcgahn: just keep going. get on the phone with the unnamed federalist society person with the initials jb, and he said hey, i want to talk to you. we are trying to get in touch with the trump campaign. we are reaching out. campaigns want to talk about judicial selection. we will not take positions in the election. i said, i understand that. i dabble in nonprofit tax law. from time to time. side note, lois lerner was the
head of enforcement years ago, just saying. [laughter] so i said, i am glad you called. we were just talking about judicial selection. and the voice said, you are? we actually have somebody in the campaign who will help us. they were very excited. i said former chief of staff to president bush. he has a lot of experience. [laughter] mr. mcgahn: there is this a deafening pause on the other end of the phone. being in des moines, i thought the phones went down. [laughter] mr. mcgahn: i hear on the other side a throaty, it is good you have someone helping. [laughter] mr. mcgahn: i said yes, it will be great. he has experience and a proven record. we asked him to come up with a different lists. the first list, we want mainstream folks, not a big
paper trail. the kind of folks that will get through the senate and will make us feel good that we put some pragmatic folks on the bench. [laughter] mr. mcgahn: the voice on the other end of the line, i could just hear this gasp. [laughter] mr. mcgahn: i said, we are going to have a second list. the second list, we have put together folks too hot for prime time. the kind that would be hot for the senate. people who have written a lot. we get a sense of their views. we want to make sure that the kind of people -- you understand. the kind of people that make people nervous. he said ok, what are you going to do with each list? i said, the first list we are going to throw in the trash, the second list is who we will put before the u.s. senate because leader mcconnell is going to get it done. [laughter] [applause]
mr. mcgahn: i am just forget my camera marks and get this done. there was this path. i did not know jonathan bunch then like i know him now. he kind of stammered. he wasn't particularly sure. he said, wait, what did you just say? i said, you heard me. i said, you have nothing to worry about. i have known leonard for years. you have nothing to worry about. seriously, we are already thinking about it. i kind of rattled off a couple names of people for different circuits. and he said, ok. [laughter] mr. mcgahn: i can just imagine when he called leonard to report back. that began quite a journey that led to mr. trump, now president trump, putting out a list of potential supreme court folks. never really had been done before. in typical fashion, it was not
done in the primary season to fake people into thinking he was more conservative than he was. it came after he was a nominee for the general election at which point every consultant in washington said, as they said every week, it is over. [laughter] mr. mcgahn: can do that, got to move to the middle. especially on the judge thing. you will scare people. it tells you where we are with that piece. i am very fortunate to survey -- to serve a president who is very committed to what we are heerere, which is nominating and appointing judges that are committed federalists. [applause] think i can safely say it is not just talk, if you look at who has been nominated
and who has gotten to the senate, i think he has made good on what he said. for all the chattering class of d.c. who thought it was a head fake or it was made up or would be something different, i think this among other things, we have proven them wrong time and time again. let me turn to the boring part, which is regulation and the rule of law and the administrative state. and i will end with more jokes at the end. [laughter] mr. mcgahn: my remarks tonight rest on independent but related ideas. the greatest threat to the rule of law in our modern society is the ever-expanding regulatory state. the most effective bulwark against that threat is a strong judiciary. in some ways, executive agencies are as old as the republic, the state department, the treasury department, and the department of war were created after the founding. the idea that there are agencies
within the executive branch is something that has been around a long time. it was always understood that the executive branch would have these departments. the constitution contemplates them, departments led by principal officers, for whom the president may require an opinion in writing on the relevant matters. the edifice of the modern administrative state was not constructed until the 20th century on the notion that independent experts, rather than our elected representatives are best suited to govern the nation's affairs. woodrow wilson was the most notable avatar of this approach. he argued for a separation of politics from the work of governing, leaving the big decisions to the supposedly above the fray nonpartisan experts. taken to its logical conclusion, one wonders why we should continue to have elections at all under that way of thinking. since then, the administrative state has expanded beyond anyone's wildest imagination.
in 1960, the federal regulations was over 20,000 pages. today, it totals over 200,000 pages. the pervasiveness of regulation is unavoidable. there are scores of agencies and armies of bureaucrats who claim to be so-called independent of any presidential control. they proudly proclaim to be theirtisan, but registration says otherwise. they called it political while wrapping themselves in the ability of being career. a career that is within the confines of their own regulatory structure. it is virtually impossible for an individual or business to know, let alone ensure compliance with, each of the regulatory commands that these agencies and bureaucrats produce. where does the authority for this vast administrative state come from? let's start where we should always start, the constitution. the constitution very clearly vests all --
government power is in three branches of government. article one provides all legislative power should be vested in a congress of the united states. article two, this is the lecture part, article two states the executive power should be vested in a president of the united states. we particularly like that one. [laughter] mr. mcgahn: article three says the judicial power should be invested in one supreme court and in such inferior courts that the congress may ordain and establish. sitdoes the leviathan within the system? many in this room say it does not. the problem is not many a form that the constitutional objection, the ever-growing administrative state is a direct threat to individual liberty. it is well documented that the previous administration had one of the worst records before the supreme court in american history. several losses were before a unanimous court. in many cases, that is because its agencies were farseeing in their statutory and constitutional authority.
they were directly intruding on individual rights. look at some of the most important cases the supreme court decided in recent years. little sisters of the poor. rose outs out -- those of administrative actions. they were not in the statue. -- not in the statute. the department of health and human services had a mandate to regulation. the court rejected the agriculture's department requirement that farmer set aside large amounts of their crops for government use without just compensation. the government's attorney insisted this confiscation of raisins which is standard regulation. the supreme court unfortunately disagreed. now we can all have raisins. in michigan versus epa, the court invalidated and environmental regulation that impose $10 million in costs for $6 million of benefits. the church was sued for terminating a minister that had violated a tenet of their faith.
the supreme court unanimously disagreed. these are only a few examples. but they demonstrate how severe the threats are under check of the expansion of administrative power. none of this is news to people in this room, except maybe the media. hello. [laughter] inception, from its -- there is a reason why president trump asked me to be his lawyer. [laughter] mr. mcgahn: from its inception, the federal society has emphasized the importance of separation of powers of individual liberty, and that the role of the courts is to say what the law is, not what the law should be. what we share is a commitment to the rule of law. to the same in during truths, due process matters. that the structure of our government matters and the meaning of words mean something. and that an erosion of those principles is a direct threat to individual liberty. that is why regulatory reform and judicial selection are so deeply connected.
in my view, they are the two greatest legal issues this administration will check. the president is making fundamental changes to have the regulatory state interacts with the people. and he is selecting judges who will enforce the laws written in respect to the separation of powers. the trump vision of regulatory reform can be summed up in three simple principles. due process, fair notice, and individual liberty. [applause] mr. mcgahn: tonight, i hope to unpack these ideas and provide insight for how the administration is hoping to work these principles. a few years ago, the supreme court decided a case. many of you are familiar with it. you are familiar with the case and the kafka like regulatory process the epa inflicted on a family.
for those not sure, let me recap the facts. but before i do with that, this case captures a disturbing clarity of the many problems of the modern administrative state. the family purchased land in idaho and plan to build a home. as they were preparing the land for construction, the epa sent them a compliance order claiming the construction was prohibited because their land was covered by the clean water act. even though it was several lots away from any body of water, the epa asserted they could not fill the land to build their home. them tocy ordered restore the land to an epa approved condition or face fines. the epa denied the family a hearing and argued that they lacked the rights to challenge the epa's actions in court. it seems woodrow wilson's dream of the experts being free of influence or interference had come true. the case made its way to the supreme court on that last question.
whether the family had any right to challenge the epa's actions in court. the supreme court unanimously held that they did. to a group of lawyers, this seemed like a straightforward proposition. the government agency sought to enjoin principles. alito noted in his concurrence, in a nation that values due process and not to mention private property, such treatment is unthinkable. but to the agency, this was standard regulation. the epa's authority cannot be questioned, so they said. the issue is not isolated to the but epa. it affects all agencies. this my own encounter with during my tenure at the federal elections commission. i have my own encounter. it was clear the due process was a foreign concept and i was vocal about that. the business was being conducted in secret and in some instances, the agency lacked public procedures to govern the commission and its staff. the idea of ensuring those
accused of wrongdoing -- to make matters worse, some staff viewed themselves as independent of the commissioners appointed by the president and confirmed by the senate to run the agency. according to these folks, they had authority to make decisions devoid of any statutory and constitutional authority. think about that. the status is an independent agency. as part of what some call the fourth branch. it is already troubling under article two of the constitution, and the supreme court had held the original structure was unconstitutional. they said they were insulated from that and wasn't under no obligation. in their mind, they were a fifth branch of the government. independent from the independent agency, and accountable to no one. this is not isolated. it seems to be business as usual in the administrative state. take for example the case of free enterprise versus public company accounting oversight. the supreme court held that they were unconstitutional because its members could be removed
members whoause by were moved by president only for cause. the opinion seized on this protection as a violation of separation of powers and the supreme court agreed with him. it reversed the d.c. circuit. they are the problems the current administration is facing across the government. agencies have an obligation to -- regulativeory parties due process. agencies must be accountable to the elected head of the executive branch. the court should view claims of sweeping authority with skepticism, not nonchalance. the first step in preserving freedom, the government has an obligation to inform parties of the rule that apply to them. anyone who is engaged with the regulatory state in the last decade know agencies have taken the opposite approach.
far too often, agencies offer vague regulations or in some cases no regulations at all. then they interpret those vague regulations through dear colleague letters. to administrative law experts, these are known by the orwellian term sub regulatory actions. but whatever you call them, they are illegitimate. typically, they receive no public comment and come with no advance warning before the agency springs them on winning -- on unwitting parties to enforce actions or ominous warning letters. agencies have managed to deduct reviews of regulatory actions claiming they are not final binding rules. but they are inconsistent with the rule of law. [applause] mr. mcgahn: there is no way for regular people and small businesses to keep up with the constant flood of regulatory and sub regulatory actions that pour out of the ever-expanding regulatory state. this nonstop spigot is a fair notice problem and its own right. even when agencies announce what
the rules are, those rules are buried in pages of the federal register. moreover, the sub regulatory underbelly is indicative of the massive nondelegation problem lurking in the modern state. rather than exercise the legislative power the constitution vests in congress, congress often hunts the -- often punts the difficulty of lawmaking to the executive branch. the result is all policymaking authority is shifted to the administrative state and factions are left unreviewed. in the 10th circuit, neil gorsuch said it more eloquently than anyone else ever could. in his lynch concurrence, he wrote "the fact is chevron and brand x permit executive bureaucracies to swallow huge amounts of legislative power and compensate federal power in a way that seems a little more difficult to square with the
constitution of the framers design. maybe the time has come to face the behemoth." [applause] mr. mcgahn: i knew quoting gorsuch would make me sound -- [laughter] mr. mcgahn: on behalf of him, thank you for applauding his words. layer on top of that, the supreme court's decision which held that congress can limit the president's authority and many of the most significant policy decisions and legal rules lie entirely in the hands of unknown -- unaccountable agencies. bureaucrats who claim of being the moderne -- regulatory system makes a mockery of the finely wrought system of checks and balances the founders baked into our constitutional design. the framers separate government power, both between the branches and between the state and
federal governments, to preserve liberty. when we abandon the design altogether, we invite the regulatory despotism that judge gorsuch now so eloquently criticized. moderneats posed by the administrative state are unprecedented, but are rooted in the international struggle that has existed for a long time. the variouslooks at competing schools of thought in greek philosophy, the differences between the american and french revolutions, the theme is clear. more and more, you see two ways of viewing how we govern ourselves. one is where folks in floyd employ -- folks experts to make the decisions. our founders knew this. they knew the correct ability of man. their skepticism of centralized power restrained federal
government's authority. madison explained that the separation of powers guards liberty. if men were angels, he famously said, no government would be necessary. overecause ours is men men, you must first enable the government to control the government, and oblige it to control itself. these founding principles were inverted during the expansion of the administrative state, and have been mocked and abandoned by the progressive movement . . that is the principle underlying the supreme court's decision, toch held contrary controlling the actions of the yieldive branch must to independent agencies. it is the principle underlying
that notion that has had courts agencies' o interpretations of the statutes they administer. as a basis for the supreme court's troubling decision from 1947, it in powered agencies to issue retroactive regulations to adjudication. justice jackson saw the problem instantly, speaking in dissent. he said it makes a mockery of administrative orders, even when granted by congress. it reduces the judicial process to a mere feint. that it would in practice put most administrative executive -- administrative orders above the law. compare those cases, where the court said that before transactions otherwise legal can be outlawed or denied, the usual
business consequences, they must fall under the standards of conduct prescribed by an agency. i vote for the first case, not the second. [applause] mr. mcgahn: these fundamental shifts in our governmental structure are justified to protect the health, safety and welfare of the people. no doubt we all want to be healthy, happy, and safe, but i submit we can be though things things without abandoning the -- we can be those founding principles which make us free. so, what can be done to change the regulatory culture? for starters, burdensome rules can be eliminated and regulatory costs can be reduced. one of the president's first executive orders was entitled enforcing the regulatory form agenda. section one of the order very plainly declares it is the policy of the united states to alleviate unnecessary regulatory burdens placed on the american people. the order goes on to require each agency to designate a regulatory reform officer, some -- as some call them roo's
because in washington, d.c. we always need to speak in acronyms, these folks are charged with carrying out the president's regulatory initiatives. so there is a line of accountability between the agencies and the white house consistent with the article 2 declaration that the executive power shall be vested in the president. one of the president's other early executive orders was entitled reducing regulation and controlling regulatory costs. it is two critical elements. first, for every significant regulation it must identify two existing regulations for elimination. not only does this discourage new regulation, but it forces agencies to clean out the regulatory sediment that's built up over decades. second, agencies must control the regulatory cost that rules impose on the country by conducting economic analysis of their actions and offsetting any new costs with at least as much cost saving deregulatory actions. the goal is not to maintain the status quo but to drive down the costs imposed by previous administrations' excesses. and what about the judiciary? these efforts to reform the regulatory state begin with congress and the executive
branch, but they ultimately depend on courts that are willing to enforce the laws enacted by congress and the structural limits imposed by our constitution. this administration's mandate is crystal clear. choose justices in the mold of justice scalia, justice thomas, and now gorsuch. [applause] mr. mcgahn: justice scalia's impact cannot be overstated. he reminded us the law consists solely of the words enacted by the people's representatives. those words must be interpreted as they would have been understood by the public at the time of their enactment. there can be no secret meetings, no hidden agendas harbored in the minds of the lawmaker. in many ways, justice thomas' opinions are the driving intellectual force behind so many of trump's legal and regulatory principles. in 2015, justice thomas issued
an impressive set of concurrences and dissents setting forth his view of the modern administrative state. it should be required reading for all law students. his concurring opinions in perez versus mortgage bankers is inconsistent with the separation of powers. even justice stevens, author of the chevron decision, subsequently had critiqued it, so this is not an issue that's particularly aligned with one party or the other. or one school of thought or the other, rather. justice thomas's concurrence in the amtrak case called for the non delegation doctrine to be meaningful enforced. then, the judicial acquiescence of congress's unconstitutional transfer of legislative authority to the administrative state. and his lesser-known dissent, industries rejected the notion that decisions issued by administrative law tribunals could have an effect on lawsuits filed in federal court. even in this arcane area,
justice thomas's vision was clear. the constitution investors the judicial power in the judiciary, not executive branch agencies. regarding both justice scalia and thomas, the interpretive processes are the very bedrock of due process, fair notice, and the rule of law. and thomas's opinion demonstrates those principles are missing in our current administrative state. in my view, the two issues are one and the same. judges must enforce those statutory limits. just as agencies must provide due process to parties like the sacketts, judges must faithfully enforce the constitution's structural which exist to preserve individual liberty and personal property rights. and justice agencies owe the public fair notice of the rules, courts must interpret statutes and the constitution as the public would understand them according to the plain meaning of the text. due process, fair notice, originalism, and texturallism.
that's what this is all about. [applause] mr. mcgahn: justice scalia's tragic death put these issues front and center in the 2016 election. -- in my lifetime i can't remember a presidential , election that turned so critically on the role of judges. the president knew this which is why he issued his list of candidates for the supreme court. he wanted the american people to know exactly the type of justice he would select. you may have missed it but it came out recently the president announced today that he's refreshing his list of potential supreme court nominees, so it's public, and if i could just beg your indulgence for a second, we added five names to the list. amy barrett, she was recently confirmed. [applause] mr. mcgahn: -- to the seventh circuit. and the dogma moves loudly in her. [applause] to the folks over
there, in her confirmation hearing, the ranking member senator feinstein actually commented about now judge wasett saying the dogma strong in her. so judge dogma is on the list. [laughter] mr. mcgahn: grant, who is a supreme court justice in georgia. [applause] mr. mcgahn: greg kavanaugh. [applause] mr. mcgahn: he's winning on the applause meter. kevin newsome, recently confirmed to the eleventh circuit. [applause] wyrick.hn: and patrick [cheers] [applause] i think i'm just going to throw out my notes and go back to my opening, but i'm almost done with the boring part. so, what do the judges on the list have in common?
they have a demonstrated commitment to original ism and texturallism. they all have paper trails, they all are sitting judges, there is nothing unknown about them. what you see is what you get. it's not enough to say the right things in public speeches. judges must apply those principles in concrete cases. good judges follow the law, even when their decisions are unpopular. [applause] mr. mcgahn: judicial courage, it's as important as judicial independence. [applause] mr. mcgahn: the president is looking for same traits in lower court judges, especially on the court of appeals. every pick matters. the president wants smart judges that will apply the law as written. the interview process is like the famed scalia clerkship interview except with folks in the white house counsel's office. we never ask candidates
commitments about substantive issues but they are pushed and prodded from every angle to get a sense as to what method they would employ as a judge and whether they possess the fortitude to enforce the rule of law without fear of public pressure. of course, the president's power to nominate is only half the battle. so we've been actively engaging with the senate since day one. i've spoken to or requested to speak to every single sitting senator. not all want to speak to me. in many cases, more than once, about judicial appointments in their states. one thing that's missed from time to time by folks who just read the text of the constitution is that the president gets to make nominations. they forget the part about the advice consent clause. the senate over many, many decades has developed various customs that empower home state senators to have a big say particularly in district courts. for those wondering request we just don't nominate you -- [laughter] the home state senators matter.
we take very seriously the obligation to consult with the senate, and we painstakingly ensure that every senator has an opportunity to provide input on judicial nominees. the first thing i tell each senator is we're happy to interview them and strongly consider anyone they recommend. some never take us up on this offer and many tell a different story to the press. but we're moving quickly to fill all existing judicial vacancies. [applause] mr. mcgahn: chairman grassley and his teem have done an outstanding job moving the president's nominees to the senate judiciary committee. [applause] mr. mcgahn: candidly, chairman grassley does not get enough credit for his work on this. but the majority leader is really the one that's created this opportunity. a number of vacancies that were on the table when the president was sworn in was unprecedented. and the courage that mitch mcconnell showed to make that
happen was tremendous and we all owe him a debt of gratitude. [applause] mr. mcgahn: not to be outdone, he has made this his number one priority and he's delivering the -- he is delivering. the number of nominees that are being confirmed is tremendous. he is willing to burn the floor times, speak in the senate vernacular to get people confirmed. as much as us know, the senate the medic rats are insisting on all debate on each nominees, even the nominees passing 98-0. home state senators are in favor of the nominee and the like. our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. that is completely false. i have been a member of the federalist society since law school. still am.
so frankly, it seems like it has been in sourced. [applause] mr. mcgahn: but seeking advice from leonard and many members of the federalist society, not outsourcing the judicial selection process. the fact is we all share the same vision of the judicial role and we welcome input from many sources. many of us in this room became lawyers in the post bjork era. i certainly did. we understand the importance of judicial selection and we've seen first hand the lengths to which others will go to tarnish the reputation of good men and women. i've already mentioned earlier this year the situation that confronted now judge barrett, a prominent democrat suggest that she couldn't be trusted because she's a practicing catholic. thankfully, she's now a judge on the second circuit. [applause]
mr. mcgahn: greg's hearing had the tone of a spanish inquisition because he had chosen to serve his country as an attorney during two republican administrations. but he's been voted out of the committee and i'm confident he'll soon be confirmed to the d.c. circuit. [applause] mr. mcgahn: i have to clap for that one. [applause] mr. mcgahn: i want to thank greg for his service. he's been invaluable to my work in the white house, and it's really an honor to have been able to work with him and be a part of seeing him, senate willing, go to the next level. [applause] mr. mcgahn: speaking of outsourcing, there is a different sort of outsourcing that's very real and should be
troubling to all of us. during our efforts to consult with senators on potential nominees, we are often told that the senators have so-called commissions back in their home state that recommend judicial candidates to them. and these senators sometimes insist that they cannot support anyone on their commissions -- sorry, can't support anyone their commissions do not interview and ultimately recommend. but i have never heard the judicial commission's clause in the constitution. [applause] mr. mcgahn: my constitution says the president appoints judges with the advice and consent of the senate. not a commission composed of plaintiffs, lawyers and others who have business before the very people that they will have appear in front of. them. [applause] mr. mcgahn: the problems with this practice are strikingly similar to the problems we face with the administrative state. no one elected the members of these commissions. they have no real accountability to congress or to the president. yet some senators want to delegate to them the power to
select or reject candidates for lifetime appointments to the federal bench. and who are the typical members of these commissions? the very lawyers who will be practicing before the judges they have been tasked with selecting. that's the outsourcing problem and it's very real. then there is american bar association. [booing] mr. mcgahn: i told you i was going to come back to the good stuff. [laughter] mr. mcgahn: the ada has no role whatsoever in the president 's -- [applause] mr. mcgahn: enough said. [laughter] mr. mcgahn: despite these obstacles, we're very pleased with the quality and pace of our nominations. when the president took office, there were over a hundred federal judicial vacancies, including the supreme court. in 10 months, the president had
nominated over 70 judges to fill those vacancies. 14 have been confirmed, nearly 50 are currently pending in the senate. dozens more are in the process and will be nominated shortly. early next year, we expect a significant number of additional nominations. we know how important these appointments are to you and how important they are to the rule of law. we thank you for your support in this effort. in closing, this convention has rightly been a celebration of the federalist society's success. not only did we celebrate the appointment of a committed originalist to the supreme court. but in the tradition of the federal society, we've debated the most important legal questions facing our nation. how do we restore the rule of law, separation of powers and individual liberty in the face of the administrative behemoth? i want to thank the federalist society for the topic this year. the idea of a rigorous debate over the role of administrative state could not be more timely. it has been beneficial to us. in a personal moment, i feel
that many of my hairbrained ideas on administrative law are being debated this week by very serious people. it's an honor to be a part of this, and it's an honor to have been a member of the federal society for many, many years. thank you for the opportunity to speak tonight. and thank you to everyone at the federalist society for making so much of this possible. thank you. [applause] mr. meyer: thank you so much.
i suspect among other things, barbara would be very proud of that and i see ted nodding. thank you, thank you for your service. that concludes the lecture. we have the reception. it's across the hall, is that right? the reception for those who have signed up for that is across the hall. appreciate you all coming, and thank you. [applause] >> the house this week