United States Senator Mike Lee (R-Utah) is said to be on the short list, but perhaps not the shorter list, to fill the US Supreme Court seat opened by Justice Anthony Kennedy’s retirement.
Here we’ll consider why President Trump might nominate Utah’s junior senator — and why he probably won’t.
What Senator Cruz Says
Fellow conservative Senator Ted Cruz (R-Texas), says Lee is the best choice. “A sure thing, battle-tested, ready, and willing to serve,” he says. “Made for this moment,” he says.
No other candidate has [Lee’s] combination of record, ability, and a sure-fire path to confirmation – and no other candidate would excite conservative voters this November more than someone they know and trust, like Mike Lee.
. . . [T]here is not a single soul out there who can doubt that a Justice Mike Lee would remain true to the convictions he has fought for his entire life.
. . . [M]ike Lee is extraordinarily well-qualified to serve on the Supreme Court. His legal acumen and experience are unparalleled.
. . . Lee has served in all three branches of the federal government. He clerked for two federal judges, including Supreme Court Justice Sam Alito. He was a federal prosecutor, general counsel to the governor of Utah, and has served his home state for the better part of a decade in the U.S. Senate.
As Lee’s colleagues know, he is a brilliant legal thinker, capable of seeing all sides of an issue through a principled, constitutionalist lens.
I mostly agree with Senator Cruz here. I think Mike Lee is an extraordinary senator and would be a fine Supreme Court justice. But I’m not holding m my breath.
I’d like to believe Senator Cruz when he writes, “As a U.S. senator, his nomination process would be simple and his confirmation would not be in doubt. . . . Sen. Lee has the respect and admiration of his colleagues, Republicans and Democrats alike. And even with Republicans’ slim majority, senators on both sides of the aisle would have little trouble giving their advice and consent to a nominee they have served alongside for years.”
I’d like to believe him. But I don’t.
Ripe for a Borking
Let’s look back in time to 1987 and compare Senator Lee with a certain past nominee. We’ll want to compare their respective situations too.
Justice Kennedy was President Reagan’s third try to fill a 1987 vacancy on the court. His second try was Judge Douglas Ginsburg, who withdrew when his past relationship with marijuana became public. President Reagan’s first try was Judge Robert Bork, who was, to put it crassly, borked. That’s where we got the verb.
I worked at the US Senate then, though not for the Judiciary Committee or any of its members. On one hand, in the committee hearings Professor Bork was facing what had to be the slowest group of law students he had ever labored to teach — and sometimes he acted like it. His demeanor was unwise, I thought, but there were far larger issues.
On the other hand, I saw at close range how little the truth matters when the heat of politics is turned up. The way the Democrats, the media, and some of the more cartilaginous Republicans treated him was full-on despicable.
Mike Lee has a good deal more charm, if that matters — but the president who might nominate him makes Judge Bork look like a finishing school’s star graduate.
Judge Bork was a powerful intellect, and there was some fear that he would be disproportionately influential on the court. I’m not yet convinced that Senator Lee is in Robert Bork’s intellectual league, but he is exceptionally intelligent.
At age 60, Judge Bork was young enough to be around for a while. Senator Lee is more than a decade younger.
Like Judge Bork, Senator Lee has written extensively of his views on many constitutional issues. This has proven since 1987 to be a major handicap in the confirmation process. Such is the absurdity of the age that we prefer nominees who cannot be tied to any clear personal views on issues of consequence.
So, his personal charm and bipartisan record aside, Mike Lee is everything the Democrats don’t want in a nominee: young, articulate, intelligent, congenial, and too firmly conservative to give hope that he will move to the left once he’s on the bench.
There is a key parallel in circumstances too: a confirmed conservative nominee replacing a moderate would make the court more conservative.
Justice Kennedy has been the court’s moderate swing vote in many key issues. So the stakes are greater now for both sides than they were in the recent nomination of conservative Neil Gorsuch to replace iconic conservative Justice Antonin Scalia. Replace Justice Kennedy with someone more conservative, and the court tilts conservative — perhaps more than a little.
Similarly, in 1987 Judge Bork was to fill a seat vacated by Justice Lewis Powell, who was more moderate. A more conservative court — even if the new member didn’t wield an outsize influence on his peers — would have threatened any number of liberal sacred cows. The greatest, then as now, was Roe v. Wade — a miserable piece of jurisprudence, as scholars on both sides affirm, but one which many have been desperate to prop up, these 45 years and counting.
This year, the pressures will be enormous, especially where abortion is concerned. Liberals and the Left (one wonders which controls the Democratic Party these days) both know that most people don’t share their views on abortion. If the court overturns Roe and leaves the issue to the states, many of them may ban or severely limit abortion.
If fact, if what I’m hearing is true — it resembles what we heard in 1987, except that it’s already more frantic — the presence of another conservative on the court will usher in the (secular) Apocalypse, because, as everyone who is anyone already knows, people who think constitutional text means what it says are not only old-fashioned. They are hateful. They are opposed to clean air, clean water, safe food, health care, civil liberties, women, minorities, children, poor people, puppies, decent wages, world peace, ice cream cones, and low-lying beachfront property. We could have a healthy, intelligent, far-reaching debate on important issues, during the upcoming confirmation process, but we won’t. Whoever is nominated, it’s anybody’s guess which will be greater: the foolishness of the debate or its viciousness.
Many of us were stunned at the ferocity of the Bork battle in 1987, but this one will be worse. In 2018 the Left feels justified in using mob tactics to expel administration officials from restaurants and to chant “No justice, no sleep!” outside their bedroom windows, to say nothing of publicly threatening the lives of the president and his family. Politically, too, there’s fresh blood in the water: the hated Trump-appointed dismantler of the EPA, itself a pillar of liberal faith and hope, just stepped down.
Of course, what finally matters is the vote. Granted, the Democrats were in the majority in the Senate in 1987; they are slightly in the minority now. So a Republican chair will run the confirmation hearing. That may help. But the Democrats are notoriously good at party discipline, and the GOP is notoriously bad at it. With two Republican Senators who are adamantly pro-choice and Senator McCain, who is ailing and chronically absent, the Republicans will struggle to get 50 votes (so Vice President Pence can break a tie) for any pro-life candidate. Perhaps a few Democratic senators from heavily pro-Trump states will defect. But who knows? (For a liberal view of what’s to come, see E. J. Dionne’s recent Washington Post column, “The only way to win the Supreme Court fight.” He quotes a number of Democrats and also lists the two Republicans and three Democrats who may vote against their respective parties.)
The Mormon Problem
With Senator Lee there’s a further complication. He’s a practicing Mormon, a member of the Church of Jesus Christ of Latter-day Saints. That may be a deal-breaker.
After Judge Bork’s defeat in 1987, when the White House and key senators were vetting prospective nominees, two things were generally known in the halls of the Senate office buildings.
First, at least two and probably three Mormons were short-listed for the nomination, after the Bork defeat. Second, the majority (Democrat) side of the Judiciary Committee had a thick file of material prepared to destroy any Mormon whom President Reagan might have nominated.
Mormons, you see, tend to believe that God inspired the founders of the US Constitution. This doctrine is easily (and unreasonably) distorted into the idea that each phrase is so sacred that it can never be changed or reinterpreted. Mike Lee is too smart for such shallow theology, but it will make good sound bites for Democrats. They will also express fear that a Mormon justice would be unduly influenced by his church leaders, including the Church’s president, whom Mormons regard as a prophet of God. Similar objections were raised against John F. Kennedy’s candidacy for president in 1960, because he was Catholic; would he take orders from the Pope?
Misguided or not, both these concerns will be weaponized.
Meanwhile, battlefield conditions have changed, and some key alliances are suspect.
Now, compared to then, there is more hostility toward religious people and religious influences in the public square. Moreover, the two parties are less inclined to work together on legislative matters generally, but especially on a high-stakes nomination. Granted, Senator Lee stands out for his seriousness about legislating and for reaching across the aisle, but that likely won’t be enough against the tremendous pressure that will be brought to bear to keep Democrats and pro-choice Republicans from thinking — and voting — outside the box.
Meanwhile, much of the pro-life energy in our politics comes from the Christian Right, who would be key allies in any conservative’s nomination fight. This is the same Christian right that stayed home in droves when a Mormon ran as the GOP candidate for president in 2012. As a bloc, they might be reluctant to lift a finger for Mike Lee — except the same finger a lot of the Left will be exercising. Some of them may actively oppose him. (We Mormons aren’t Christians, some of them falsely claim, and the Devil is our master. So we don’t belong in government. This attitude boiled to the surface again mere weeks ago in Mitt Romney’s primary campaign in Utah.)
Maybe Senator Cruz is right in saying that a Mike Lee nomination would sail through the Senate. If that’s true, and if President Trump is savvy enough to see, understand, and exploit it, he may nominate Lee. But I think abortion in particular is too sacred to too many senators and too many of their donors; it will overpower GOP party loyalty and whatever personal respect some Democratic senators may feel for Senator Lee.
There’s one other scenario in which President Trump might nominate Senator Lee (seriously, I mean, and not as a sacrificial lamb). President Trump is a megalomaniac, and the very traits of Senator Lee which will whip liberals and the Left into a toxic froth would also make his successful confirmation the most devastating possible defeat for the president’s enemies. (I call them enemies, not opponents, because he does, because they do, and because they walk the talk.) So maybe the president will want to set the bar extra high, just to rub it in, when he clears it.
No matter whose face appears next to the president’s on Monday night, expect a bloodbath. Only if the president wants to maximize the bloodbath and his opponents’ potential humiliation is he likely to bet the house on Mike Lee.
I think he’ll choose a more likely path to victory.