On Wednesday, Supreme Court Justice Anthony Kennedy announced his retirement from the nation’s highest court. President Donald Trump promised to speedily replace him, and that he would choose someone on the list of 25 candidates he developed to fill the seat vacated by Justice Antonin Scalia. Trump should pick Sen. Mike Lee (R-Utah).
I have been a big fan of Lee for a long time. A former Supreme Court law clerk, this senator has taken firm principled stances and presented a strong originalist view of the Constitution. He made Trump’s second list, the current one under consideration.
Lee took himself out of the running in September 2016, as he was running for his U.S. Senate seat that year. On Wednesday, he changed his tune. “If somebody asked me if I would consider that, I would not say no,” the senator told reporters.
Mike Lee spoke to reporters in a rare hallway interview about SCOTUS. Asked if he would ever be interested in being considered, he noted he has been a court watcher his whole life, used to watch arguments for fun as a kid. "I would not say no." He added it is Trump's decision.
— Lauren Fox (@FoxReports) June 27, 2018
If confirmed, he would be the first sitting senator named to the Supreme Court since Hugo Black in 1937.
Sen. Ted Cruz (R-Texas), the other former Supreme Court law clerk in the U.S. Senate, threw his support behind Lee Wednesday. “I think the single best choice that President Trump could make to fill this vacancy is Mike Lee,” Cruz told Fox News. “The reason why I think the best choice that President Trump could make is Mike Lee is because I know beyond a shadow of a doubt that Mike Lee would be faithful to the Constitution and Bill of Rights.”
— Senator Ted Cruz (@SenTedCruz) June 27, 2018
Lee literally wrote the book about restoring the Constitution along originalist lines. I highly recommend his 2015 book, Our Lost Constitution: The Willful Subversion of America’s Founding Document.
Ken Klukowski, senior counsel and director of strategic affairs at First Liberty, also pushed for Mike Lee in 2016 comments to PJ Media.
“Mike Lee’s work as a senator is a much clearer indication of his personal philosophy than many lawyers, because they argue for their clients,” Klukowski explained. “A U.S. Senator who’s been in office six years with a very robust constitutional philosophy reflected in their work is a rock solid record as to what their views are on the Constitution.”
If Trump were to choose Lee, the Senate confirmation would be tough. “Everybody else on that list is a sitting judge and I think that’s more likely,” Thomas Jipping, senior legal fellow at the Heritage Foundation, told PJ Media. The Heritage Foundation compiled Trump’s lists of potential nominees.
“The thinking is that a senator can get through the Senate process easier, but that hasn’t been true for the past thirty years,” Jipping added. That said, the Heritage legal fellow admitted, “the fact there is a list means that everyone on the list is a frontrunner.” Lee remains on that list.
While Lee’s position in the Senate may make him less palatable to Democrats, Trump’s nominee is unlikely to muster many blue votes. “Second only to Kennedy’s announcement itself, the most important thing that happened today is that [Senate Minority Leader] Chuck Schumer said he will oppose any name taken off the list,” Jipping noted. He added that Schumer did this “within about two hours.”
Schumer made this stand while referencing the 2016 decision by Senate Majority Leader Mitch McConnell (R-Ky.) to refuse to consider any Obama nominee, since a presidential election had already started. “That was so totally unique, it absolutely has no parallel,” Jipping explained. The Kennedy announcement, however, “is the normal case, at the end of a term the justice says he is going to retire.”
“There’s literally no reason, no reason to handle this in anything but the regular order in the Senate,” the Heritage scholar, who has more than 30 years of experience in judicial matters, told PJ Media.
Although Republicans in the Senate announced they would not consider an Obama nominee during a presidential election year, Obama decided to make a nomination anyway. “I don’t know whether Obama thought they were lying, but he chose to send a nominee that he knew would never get a vote,” Jipping said. “That whole mess was Obama’s doing.”
Cruz argued that Trump should nominate a justice who would not betray originalism at a later time, and suggested that Mike Lee has already stood up under fire. Senate Democrats are in a pickle — Schumer will pressure them not to vote on any Trump nominee, while a few embattled Democrats may choose to defect in order to win in states Trump took in 2016. Most likely, Trump’s nominee will pass with the Republican conference and zero Democratic votes.
Since this is the case, Mike Lee arguably represents a surefire originalist. “Mike Lee was on the list. The president said he was going to be on the list. If he nominated Mike Lee it would be completely in line with what he said he was going to do,” Jipping told PJ Media.
That said, Jipping called for a sitting judge instead. “There’s a whole bunch of very experienced sitting judges and that’s actually a more likely candidate, I think.”
Ironically, one of those sitting judges is Thomas Lee, Mike Lee’s brother. He serves on the Supreme Court of Utah.
While Jipping raised good points, I firmly believe Mike Lee would be an excellent choice, if not the best one.
Some conservatives may be loathe to call a principled conservative out of the Senate, but they should not fear a Democrat replacing Lee. Utah is a deep red state, and if Lee vacates his Senate seat to join the Supreme Court, he would be replaced by another conservative Republican in short order.