Washington • Sen. Mike Lee and his brother, Thomas Lee, a Utah Supreme Court justice, are on the White House’s short list of possible nominees to replace retiring U.S. Supreme Court Associate Justice Anthony Kennedy.
President Donald Trump said Wednesday that he would “begin immediately” vetting possible candidates for the high court and would stick to the list he provided during his campaign of 25 potential nominees.
“It will be somebody from that list,” Trump said.
Sen. Lee, who clerked for the Supreme Court previously, told reporters he “would not say no” if he were asked.
His brother declined comment through a Utah courts spokesman.
Sen. Ted Cruz, a Texas Republican and buddy of Mike Lee’s, told Fox News that Trump should pick the Utah Republican senator for the seat.
“I think the single best choice President Trump could make is Sen. Mike Lee,” Cruz told the cable channel. “I think he would be extraordinary.”
Cruz added that Republicans haven’t always picked the most conservative jurists in the past – some nominees turned more liberal once on the court – but that “I know beyond a shadow of a doubt that Mike Lee would be faithful to the Constitution and Bill of Rights. He’s not going to evolve.”
Lee, who clerked for Associate Justice Samuel Alito at the Supreme Court and the circuit court level, is a lawyer who previously served as general counsel to then-Gov. Jon Huntsman as well as assistant U.S. attorney.
Lee’s father, Rex Lee, served as solicitor general under President Ronald Reagan, which gave his young son a front-row seat to history.
“I started watching Supreme Court arguments for fun when I was 10 years old,” Lee said in a statement Wednesday praising Kennedy, a Reagan appointee, for his “unique and lasting mark” on the country’s justice system. “So if somebody asked me if I would consider that I would not say no. But the president’s got a decision to make and I trust his ability to make it and make it well.”
A group of researchers last year published a study seeking to find who among Trump’s list would be most likely to fill the role that the late Associate Justice Antonin Scalia, a die-hard conservative jurist, had on the court.
Their conclusion: Thomas Lee had the best chance.
Weighting different factors such as practicing and promoting originalism, citing Scalia’s works and how often did a judge write a separate opinion from their colleagues as Scalia was wont to do, and Thomas Lee had a 99.4 percent chance of being in the Scalia mold.
The vacancy on the court also puts another Utahn in the spotlight: Sen. Orrin Hatch.
Hatch, who is retiring at the end of the year after 42 years in the Senate, has played a role in confirming every Supreme Court justice currently serving, and one more vacancy gives him a chance to help shape the court for generations.
“I expect that Senator Hatch will play a large role and that many senators will look to him for guidance because he has been through so many confirmation processes before,” says Carl Tobias, the Williams Chair in Law at the University of Richmond’s School of Law.
Hatch, who is not seeking re-election, didn’t mention any possible replacement in a statement issued shortly after Kennedy sent his resignation letter to the White House.
“I congratulate Justice Kennedy on his service to our country,” Hatch said. “He has been a stalwart defender of the First Amendment, federalism and other important rights. I look forward to working with the administration over the coming weeks to guide his successor through the confirmation process.”
Unlike in 2016, when Senate Majority Leader Mitch McConnell refused to hold hearings on then-President Barack Obama’s pick to replace Scalia because it was an election year, McConnell said Wednesday the Senate would vote this fall on a new nominee.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” McConnell said on the Senate floor.
Obama’s nomination of Merrick Garland to the high court lapsed when he left office, allowing Trump to nominate and the Senate to confirm Neil Gorsuch.
Senate Democratic Leader Chuck Schumer of New York said that Republicans should follow their own arguments from 2016, that with an election so close, any nomination should wait until the voters have spoken.
“Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a Supreme Court justice in an election year,” Schumer said Wednesday.
“Senator McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate,” Schumer continued. “Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then. Anything but that would be the absolute height of hypocrisy.”