Could This Senator Move Across the Street to the Supreme Court?
WHY YOU SHOULD CARE
Utah Senator Mike Lee, a conservative constitutionalist from the cradle, could be Donald Trump’s next Supreme Court pick.
For three decades, one man has held down the center of an often divided U.S. Supreme Court: Justice Anthony Kennedy. With his departure from the bench, OZY is delving into what the Court might look like in his absence and whom Donald Trump might nominate to take his place — from a no-nonsense Midwesterner to the lead author of the infamous Starr Report to a Utah senator. This is Life After Kennedy.
Most kids would just call in sick. But if Mike Lee skipped school growing up, it was usually to watch his father argue cases in front of the Supreme Court. The son of Solicitor General Rex Lee during the early Reagan years, he had a front-row view to what “felt like a church in a foreign language,” Lee says. The devout Mormon threw himself into his second faith, discovering a belief in the constitution and the need to limit federal power, eventually writing four books on the subject.
With the Supreme Court now in need of a justice, it’s no stretch to imagine Lee ascending from the sidelines to the bench itself, as the U.S. senator from Utah was listed on a 25-person short list released by the White House last November. “I would not turn that down,” Lee says.
You don’t always get a monument in your name, or big buildings named after you, for arguing to limit government.
A Lee selection would be another unorthodox move by Donald Trump — no Supreme Court nominee in the last half-century has served in Congress. But tapping a longstanding, affable face in Washington circles could help grease the Senate skids for a bare-knuckle confirmation fight. Shuffling between Provo, Utah, and McLean, Virginia, he was childhood friends with the son of former Nevada Senator Harry Reid. (The future Majority Leader once locked Lee in a garage as a joke; they became Senate colleagues after Lee joined the body in 2011.) Lee went to school with Sen. Strom Thurmond’s daughter, and lived three doors down from Sen. Robert Byrd. After attending Brigham Young University, where his father started the law school, he clerked for Justice Samuel Alito — both on the Supreme Court and Third Circuit Court of Appeals. “What I would like to see is another Neil Gorsuch or Sam Alito or Clarence Thomas,” Lee says, citing the three most conservative members of the court.
An originalist in their mold, Lee, 47, likes his constitution exactly as is: no extra ifs, ands or buts; none of that creative interpretation or, founders forbid, some newfangled take. Still, there is nothing plain about Lee’s views, which in his writings and words convey a sense of a vibrant constitution — in that each article and amendment was fought for by breathing people, as perfect and plagued as the rest of us. “Governments are not supernatural; they are not blessed with omniscience; they are the products of individual human beings,” he says, a key aspect of his view that individuals must be protected from overreach.
It’s these people Lee explores in Written Out of History, published in April, a constitutional tale showcasing his willingness to engage with arguments from names that wouldn’t make most Republicans’ Rolodex. Take Mercy Otis Warren, a prominent female writer and protégée of John Adams who broke against her mentor over the potential for overreach. Or Canasatego, an Iroquois chief whose words taught Benjamin Franklin the principles that became separation of powers. Perhaps most telling is his inclusion of Luther Martin, who argued forcefully against federalism and slavery while serving as the longest-serving attorney general in Maryland history — and who was “drunk throughout,” recounts the teetotaling Lee. (During one case, Martin was asked not to drink; he soaked his bread in brandy and sucked on it instead.) Despite losing against founding fathers like James Madison and George Washington, Lee praises the mark made by the “original and most outspoken anti-Federalist.”
“You don’t always get a monument in your name, or big buildings named after you, for arguing to limit government,” Lee says. But do you get a black robe and an office on First Street? The argument from Lee’s backers rests in part on his relationship with the 99 egos across the street in the Senate. “The president has to calculate what kind of battle does he want for the fall,” says Boyd Matheson, a former Lee chief of staff and president of the Sutherland Institute think tank. “From a political standpoint, it would be very hard for Chuck Schumer to come in and say, ‘This is not the guy.’ ”
Would it, really? Since knocking out a sitting Republican senator in a right-wing primary challenge in 2010, Lee has racked up a conservative voting record. He said on the Senate floor that the landmark Roe v. Wade decision “invented a so-called ‘right’ to abortion in the constitution, and in so doing stripped the unborn of their right to life. The principal effect of Roe on our culture has been to cheapen the value of humanity itself.” For pressure groups such as NARAL Pro-Choice America, picking apart Lee’s record has been easier than researching judges who are careful to hide their personal beliefs. NARAL Deputy Policy Director Leslie McGorman says she would expect Lee’s fellow senators to treat him with deference and respect, but that doesn’t translate to a confirmation vote for someone “very well aligned with extremists like Ted Cruz that they just don’t want to overturn Roe; they want to make abortion nonexistent in this country.”
In any case, a full White House endorsement might be tough to come by, considering that Lee publicly told then-candidate Trump to drop out of the presidential race after the release of the infamous Access Hollywood tape of Trump gabbing about sexual assault. There’s even another Lee on Trump’s list — Mike’s brother, Thomas, a Utah Supreme Court justice whom Mike Lee has said would “arguably be the best choice.”
But Mike Lee’s constitutionally driven mindset and willingness to hear disparate viewpoints would be assets for any judge. It’s taken him to unorthodox political places, such as teaming up with liberals on criminal justice reform. Lee reflects that while justices are treated “like living oracles,” they are strikingly human, just like the constitutional characters he learns from. “What was true then about human nature remains true today,” Lee says, as he writes his own chapter within that storied history.
This story has been updated to reflect Kennedy’s retirement announcement on June 27. Daniel Malloy contributed.