Washington • President Donald Trump is asking advisers about appointing Sen. Mike Lee to the Supreme Court to fill the vacancy being left by retiring Associate Justice Anthony Kennedy, Bloomberg reported.
Trump thinks Lee, a Utah Republican, would be easily confirmed by the Senate but is concerned that Democrats could pick up his seat as happened when the president nominated then-Sen. Jeff Sessions to head the Justice Department, the news outlet said, citing three anonymous sources familiar with the matter.
The White House did not respond to questions about the report.
Lee is far from being the Senate’s biggest Trump supporter. But he and his brother, Utah Supreme Court Justice Thomas Lee, are on a short list the president says he will pick from to replace Kennedy, who said Thursday he would step down from the high court.
The Utah senator, who is a former federal prosecutor and clerked for the Supreme Court previously, has said he wouldn’t say no if he were asked.
“I’m honored just even being considered for something like this,” Lee told Fox and Friends on Thursday morning. “Ultimately this is the president’s choice and I’m sure he’ll make the right decision.”
Lee’s office said the senator had not had any conversations about filling the Supreme Court vacancy and had no comment on the Bloomberg report.
White House deputy press secretary Lindsay Walters told reporters on Air Force One on Thursday that the president has begun vetting candidates for the high court and is looking for someone with “tremendous intellect, judicial temperament and impeccable qualifications.”
Bloomberg said Trump advisers assured the president that the Utah Senate seat would remain firmly in Republican hands if Lee were nominated, but the president was unpersuaded given that Sessions’ seat was filled by Democrat Doug Jones in Alabama’s special election.
Under Utah law, if Lee were nominated and resigned his Senate seat, the governor would appoint a replacement from a list generated by the Utah Republican Party’s governing body and that person would serve until voters picked someone in the next general election.
If that happened and given this November’s election is only months away, it would likely mean Utah voters in 2020 would choose a new senator to serve the remaining two years of Lee’s term.
Utah voters haven’t elected a Democrat to the Senate since re-electing Sen. Frank Moss in 1970.
Lee is considered an uncompromising conservative who was first swept into office in 2010 on a tea-party wave to knock out establishment Republican Sen. Bob Bennett.
Alarmed by then-candidate Trump’s comments during the 2016 campaign targeting immigrants and religious minorities, Lee spoke out several times in opposition to those views. He voted for independent Evan McMullin, a Mormon and former intelligence officer who was part of the #NeverTrump movement.
“It was a protest vote,” Lee told The Salt Lake Tribune at the time.
Lee was particularly critical of candidate Trump for proposing a “religious test” in deciding to ban Muslims from entering the United States.
“On many occasions I’ve expressed concerns with anything that could be characterized as a religious test, being a member myself of a religious minority church, one whose members were ordered exterminated by the governor of Missouri on Oct. 27, 1838 — not that I’m keeping score or anything. I’m worried by rhetoric suggestive of a religious test. So I’m not sure what his plans are in that regard,” said Lee, a Mormon.
Thursday, Lee said he has a “good relationship” with Trump.
”You know, he and I don’t see eye to eye on every issue but on the whole I’ve supported his efforts to restore federalism, to restore separation of powers,” Lee said on Fox and Friends. “These are different ways of saying ‘drain the swamp.’”
But Lee has does not have a great track record of voting with the president.
Fivethirtyeight lists him as lining up with Trump 82.4 percent of the time, less often than any Republican senator except Susan Collins, of Maine. That puts him just below Sens. John McCain and Jeff Flake, both R-Ariz., who are considered among the president’s most outspoken GOP critics.
Utah’s other senator, Orrin Hatch, by contrast, votes with Trump 97.3 percent of the time, more than all but just two other senators, who align 100 percent with the president.
Utah Gov. Gary Herbert on Thursday supported the idea of appointing either Mike or Thomas Lee to the high court — and said he’s looking forward “to a little bit of a circus” over whoever is nominated.
“Tom Lee, who I think is a brilliant, brilliant man, understands the rule of law and doesn’t legislate from the bench. He has wide experience now as our Supreme Court justice,” said Herbert, who appointed him to the state high court.
“The same thing would be true with Senator Mike Lee,” the governor said. “Again, [he is] a very good constitutional scholar. He clerked twice for [now Supreme Court Justice Samuel] Alito. And he certainly has understanding and experience around the Supreme Court.”
The Lees are sons of the late Rex E. Lee, who served as solicitor general for President Ronald Reagan, and was the founder and dean of Brigham Young University’s law school. He later was named president of the Mormon church-owned university.
The governor, asked if he has thought about Senate nominees should Mike Lee be appointed to the court, said, “I don’t have a short list. In fact, I expect if that happens, it will be a long list of people who would want to take it and fill that slot…. I don’t have any preconceived notions.”
When asked if he would consider appointing himself, he said, “I probably would not.” He said governors have an active role in government and “you get things done.” He said other governors who became senators told him they are frustrated at the slow pace and inability to do much.
Lee also noted Thursday that because of the small GOP majority in the Senate — and with McCain being treated for brain cancer — that if he were nominated for the high court, he might actually cast a vote in his own favor.
“My understanding is that’s what the Senate rules allow and you’re still a senator until you’re no longer a senator,” Lee told Fox and Friends.
Reporter Lee Davidson contributed to this report.
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