According to a White House press pool statement issued shortly before 5 p.m., in the name of White House spokesman Raj Shah, “The President spoke to three potential Supreme Court nominees today.”
Who might they be? And does this number of three candidates from “today” include or exclude Senator Mike Lee?
As reported by the Deseret News, President Donald Trump interviewed Senator Mike Lee, Republican of Utah, yesterday by phone. But the news of that interview broke today.
We don’t yet know the identities of the new interviewees, but we will try to find out, just as we unearthed the names of yesterday’s four in-person interviewees. We will update this story or write a new one when we have more information. (We’ve heard lots of rumors, but nothing confirmed enough to report, and we’d rather be slow than wrong.)
As for Senator Lee, I don’t see him as a serious contender. Nominating a politician to the Court is like waking up early to go to the gym. It sounds like a good idea, everybody talks about it, but nobody ever does it.
Yes, some great justices came out of the political world, such as Chief Justice Earl Warren, former governor of California, and Justice Hugo Black, former U.S. senator from Alabama. But it has been a long time since a politician was nominated to the Court. Even if you count Justice Sandra Day O’Connor — who served in the Arizona state legislature, but who was already a state appeals court judge by the time of her SCOTUS nomination — you’re talking about something that last happened almost 40 years ago.
And one can see why: it’s just too risky. Why put up a politician when there are so many great sitting judges to choose from?
On the bright side, Senator Lee has a great legal resume; he’s not just some politician who happens to have a law degree (cough cough, Mike Pence). After graduating from the law school of Brigham Young University, a top institution for Mormon overachievers, Mike Lee clerked for a federal district judge in Utah and then-Third Circuit Judge Samuel Alito. After a stint at Sidley Austin in D.C., he returned to Utah and served as an assistant U.S. attorney. He then worked in the administration of Governor Jon Huntsman, eventually rising to serve as the governor’s general counsel. He returned to D.C. to clerk for Justice Alito on SCOTUS, bounced back to Utah to work for the Salt Lake City office of Howrey (may it rest in peace), then entered politics.
Mike Lee also comes from legal royalty. His father was U.S. Solicitor General Rex Lee, and his brother is Associate Chief Justice Thomas Lee of the Utah Supreme Court (also on the Trump shortlist).
But nominating Mike Lee would make little sense (even though the senator has said he’s open to the prospect). First, there’s no reason to remove him from the Senate, where he’s an effective member of the narrow Republican majority. Second, because of that narrow majority, he could be placed in the awkward position of having to vote for himself — permissible, but AWK-ward.
Would senatorial courtesy help win him support? Senators are sometimes supportive when their colleagues move to another branch, but here, Senator Lee has a Roe problem. The Democrats, as well as Republican Senators Susan Collins and Lisa Murkowski, have made clear that they don’t want Roe to be overruled, with Senator Collins declaring “hostility” to Roe to be a dealbreaker. But hostility is what Senator Lee has expressed toward the landmark, controversial ruling. For example, here’s what he said when speaking at the 2018 March for Life:
These Americans march to protest the legal regime that sustains abortion.
The cornerstone of that crumbling edifice is Roe v. Wade, the 1973 Supreme Court case that invented a so-called “right” to abortion in the Constitution, and in so doing stripped the unborn of their right to life.
Whether you agree or disagree with Senator Lee’s statements about Roe, it’s hard to see how he could get confirmed in light of them.
Trump interviews Sen. Mike Lee about Supreme Court opening [Deseret News]
Trump interviews Sen. Mike Lee for Supreme Court vacancy [Washington Post]
David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at firstname.lastname@example.org.