Law & the Courts

As Court Pick, Mike Lee Would Be Tough to Bork

Senator Mike Lee speaks at a campaign rally for Republican presidential candidate Ted Cruz in Provo, Utah, March 19, 2016. (Jim Urquhart/Reuters)
He combines solid conservatism with a long record of bipartisanship.

One week from today, President Donald J. Trump is expected to unveil his nominee to replace Supreme Court justice Anthony Kennedy. Given Democratic intransigence and the Republicans’ scalpel-thin Senate majority, the president’s wisest and safest bet may be to recommend a young constitutionalist conservative who would be tough for Senate Democrats to Bork: their colleague, Senator Mike Lee.

The 47-year-old Utah Republican is in his second term. He has spent six and a half years legislating the size and scope of government, the separation of powers among the three branches, and the constitutionality — or lack thereof — of everything that Uncle Sam does. Lee would bring these valuable lawmaking insights to the nation’s highest bench. Lee would be the 16th U.S. senator to become a Supreme and the first since Hugo Black (D., Ala.), the former Klansman who served from 1937 to 1971.

Mike Lee’s legal background also has prepared him for this major promotion. He is a constitutionalist chip off a strict-constructionist block. “His father, Rex Lee, who served as the Solicitor General under President Ronald Reagan, would often discuss varied aspects of judicial and constitutional doctrine around the kitchen table, from Due Process to the uses of Executive Plenary Power,” Lee’s Senate bio explains. “He attended most of his father’s arguments before the U.S. Supreme Court, giving him a unique, hands-on experience and understanding of government up close.”

After earning a J.D. from BYU, Lee clerked for federal judge Dee Benson and then for Samuel Alito — when Alito was a circuit-court magistrate, and again after he reached the Supreme Court. Lee privately practiced appellate and Supreme Court litigation at Sidley & Austin. He was an assistant U.S. attorney and gained state-level know-how as general counsel to former Utah governor Jon Huntsman, now U.S. ambassador to Moscow.

Lee clerked for federal judge Dee Benson and then for Samuel Alito — when Alito was a circuit-court magistrate, and again after he reached the Supreme Court.

Senate Democrats would be hard-pressed to turn up their noses at Lee’s résumé.

More important, senators rarely turn on each other when a fellow club member is tapped for another position. If President Trump named Lee, Senate Democrats would find it difficult to attack their distinguished colleague as a space-based extremist whose flying saucer just zoomed in from Planet Goldwater. Democrats have served amicably with Lee since January 2011. Indeed, according to and ProPublica, 36 senators in the 49-person Democratic caucus (including independent Angus King of Maine and Socialist Bernie Sanders of Vermont) have co-sponsored bills that Lee has written.

In fact, the very first Democrat to co-sponsor a bill by Mike Lee was none other than Senate Democratic leader Chuck Schumer of New York. In October 2011, Schumer put his name on S.1697, Lee’s bill to permit three-year immigration periods for foreign sheep herders, goat herders, and dairy farmers. Schumer was Lee’s only co-sponsor on this bill — from either party.

Schumer also was one of twelve Democrats to co-sponsor S.1123, Lee’s April 2015 bill to reform federal procedures related to surveillance in criminal, counterterrorism, and foreign-intelligence probes.

While Schumer co-sponsored only two of Lee’s measures, the Utahn can name several Democrats who have signed onto a number of his proposals. Senate Democratic whip Dick Durbin of Illinois, New Mexico’s Martin Heinrich, Massachusetts’s Ed Markey, and Montana’s Jon Tester have each co-sponsored four of Lee’s bills. Delaware’s Chris Coons has stood up for Lee on seven pieces of legislation. Vermont’s Patrick Leahy has joined forces with Lee on eight. Mike Lee’s best friend among Senate Democrats may be New Jersey’s Cory Booker, co-sponsor of nine of Lee’s bills. Not even such firebrands as California’s Kamala Harris or Massachusetts’s Elizabeth Warren escaped Lee’s affability, charm, and persuasive skills. Each of them co-sponsored one of Lee’s bills.

Three more of Lee’s measures garnered impressive Democratic support:

  • Twenty Democrats co-sponsored S.356, Lee’s September 2015 bill to improve the privacy of electronic communications.
  • Seventeen Democrats co-sponsored S.502, Lee’s February 2015 proposal “to focus limited Federal resources on the most serious offenders.”
  • Twenty-two Democrats co-sponsored S.1933. The Smarter Sentencing Act is Lee’s October 2017 version of S.502.

These well-documented facts — universally available online — can be lobbed back at Democrats if they deploy their dog-eared demonization playbook. E.g. “Senator Booker, if Mike Lee really is the reincarnation of George Wallace, why did you co-sponsor nine different bills with him?” Knowing that such questions would arise, Democrats would be less likely to go DEFCON 1 against Lee. Deprived of their default demagoguery, Democrats would find their gun barrels stuffed with daisies. Good luck with that!

(Please click here for my detailed spreadsheet on Mike Lee’s Democratic co-sponsors.)

These co-sponsorships show that Lee works and plays well with others, even across the aisle. As Americans increasingly demand greater public civility, Lee behaves accordingly on Capitol Hill. If he joined the Supremes, this demeanor would serve him, the Court, and America well.

That said, conservatives should not become unglued because some of Lee’s bills have attracted significant bipartisan concurrence. He seems about the last person to duplicate former Justice David Souter’s record as a Republican “stealth nominee” who devolved into a loyal ally, if not a member, of the Court’s liberal bloc. In one of his countless betrayals of conservatives, President George H. W. Bush nominated Souter, a former New Hampshire state jurist with a fuzzy judicial philosophy (George Will dismissed him as “an empty Souter”). After initially voting with justices Antonin Scalia and Clarence Thomas, Souter “grew” in Washington. Before long, he regularly sided with Stephen Breyer and (as the Left sees her) Saint Ruth Bader Ginsburg.

In contrast, Mike Lee’s presence on then-candidate Trump’s September 2016 list of 21 potential Supremes — vetted by the Federalist Society and the Heritage Foundation — suggests that Lee is not ill-Souted for this position.

Moreover, Lee’s latest conservative scorecards indicate that his head is screwed on Right:

Senator Mike Lee is a reliably conservative constitutionalist Generation Xer with whose ideas Senate Democrats repeatedly have associated themselves. It’s tough to imagine a more qualified and confirmable choice for President Trump to nominate to the United States Supreme Court.

NOW WATCH: Trump Will Announce Supreme Court Pick on July 9

Deroy Murdock is a Manhattan-based Fox News contributor, a contributor to National Review Online, and a senior fellow with the London Center for Policy Research.


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