Herbert's court choice wins wide praise

Published May 28, 2010 8:11 pm
Governor sees his nominee's lack of bench experience as a plus.
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Brigham Young University law professor Thomas Lee, Gov. Gary Herbert's pick to fill a vacancy on the Utah Supreme Court, has never been a judge, but he won praise Friday as a keen legal mind whose experience would be an asset.

Michael McConnell, a former appeals court judge and one of Lee's law professors at the University of Chicago, lauded

the governor's "outstanding" choice.

"It is unusual to have someone who combines his intellectual depth and capacity with exemplary legal professional skills. He is both a lawyer and a scholar, and I think he's a person of wisdom, as well," McConnell said. "He'll really emerge not only as a leader on the Utah court, but I think he'll be a nationally recognized jurist, as well."

Lee, 45, son of former Reagan administration Solicitor General Rex Lee and the older brother of Republican U.S. Senate candidate Mike Lee, is a former deputy assistant attorney general in the civil division of the U.S. Department of Justice.

Herbert said Lee's background and experience are "unparalleled in academia" and his "understanding of the law is probably without peer."

The governor acknowledged Lee's lack of judicial experience was a consideration. But he said his nominee brings other experience and a different perspective that could produce a more well-rounded court.

"One of the issues with Tom was he had not been a judge before, but he fills other areas that others didn't have," Herbert said. "Having someone from an academic background, as well as a private-sector advocate and who has practiced before the bench ... alleviates any concerns I had about him not having worn the robes. In fact, I think it complements those who are there currently."

Utah Chief Justice Christine Durham saluted Herbert for the thorough review of the applicants and said that "we on the Supreme Court are delighted with the choice."

If he is confirmed by the Utah Senate, Lee would replace Justice Michael Wilkins, who retired earlier this month.

Lee said his judicial philosophy envisions a limited role for the high court.

"The role of the judge is to say what the law is and not what it should be," he said. "It's supremely important for a member of the Utah Supreme Court to keep in mind the Supreme Court is not a political body. It interprets law and applies law and applies it in an impartial way."

It is difficult to say what sort, if any, of political shift Lee would bring to the court. Wilkins generally was seen as a conservative jurist on a conservative body, with four of the five justices having been appointed by Republican governors.

"You're going to see him as a real rule-of-law justice," McConnell said, "someone who strives very hard not to allow his personal convictions to play a role but instead looks very seriously at the text of statutes and other legal sources, their history to try to understand the law that was laid down rather than be a legislator in disguise."

Senate Majority Leader Scott Jenkins, R-Plain City, who heads the judicial confirmation committee, said he hopes to have a hearing on the nomination and schedule a vote for Lee's confirmation when the Senate meets June 23.

"We're going to try and hustle and get that done right away," Jenkins said, although he acknowledged such a pace may not offer enough time for public input. "He's flown through the process pretty well here, and he looks pretty good."

Lee earned a bachelor's degree from BYU and a law degree from the University of Chicago. He clerked for Judge Harvie Wilkinson III on the 4th U.S. Circuit Court of Appeals and for U.S. Supreme Court Justice Clarence Thomas in 1994-95.

Thomas was among those who wrote a letter supporting Lee's candidacy, saying that his former clerk's "career and his life bespeak so much that is good about our country and our legal system."

Lee joined BYU's law school faculty in 1997 and has taught courses in civil procedure, intellectual property and legal interpretation and analysis. He has published articles on trademark and copyright law.

Lee and brother Mike represented Utah in its challenge to the 2000 census, arguing the bureau failed to count Mormon missionaries and deprived the state a fourth U.S. House seat.

Thomas Lee also represented the state in its lawsuit to try to keep a high-level nuclear waste dump from being built in Utah's west desert.

Utah Sen. John Valentine, R-Orem, who applied and then withdrew his name from consideration for the high court, said he has known both Lees since they were young boys and has been impressed with them.

Valentine helped Thomas Lee prepare for the oral arguments before the U.S. Supreme Court in the census case and said he has a sharp mind.

"I'm just very impressed with him," Valentine said. "He's very, very qualified."

Lee didn't always want to follow his father's path to a legal career. In 2000, he told The Salt Lake Tribune that, as a boy, he wanted to do his work not in a court of law but in a court in the NBA.

That didn't work out. When the family moved to Washington after his father became President Ronald Reagan's advocate before the Supreme Court, Lee found a love for the law.

On Friday, Lee said his late father -- a former president and law-school dean at BYU -- taught him that there are no simple solutions to complex problems and to view cases with fresh eyes and not to be dogmatic. Those are lessons Lee said he hopes to take with him to the bench.


About Thomas Rex Lee

Age: 45.

Family: Married with six children.

Current job: Brigham Young University law professor and counsel at the Salt Lake City firm Howard, Phillips & Andersen.

Past jobs: Deputy assistant attorney general for the U.S. Justice Department's civil division, 2004-05; clerked for U.S. Supreme Court Justice Clarence Thomas, 1994-95; worked for the Salt Lake City firm Parr, Waddoups, Brown, Gee & Loveless, 1992-97; clerked for 4th U.S. Circuit Court of Appeals Judge Harvie Wilkinson III, 1991-92.

Education: Bachelor's degree from BYU, 1988; law degree from University of Chicago, 1991.



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