“Let the SCOTUS games begin!” read a text message I got from a Senate staffer just moments after the announcement of Justice Anthony Kennedy’s retirement. Now the big the question resonating from sea to shining sea – to paraphrase the late, great George Jones – is, “Who’s gonna fill [his] shoes?”
As it turns out, one of the Senate’s own members could very well get the coveted job offer.
The decision is far from an easy one. After all, Antonin Scalias and Clarence Thomases don’t pour out of law schools at the rate that proponents of constitutional government would like.
The Senate has made quick work of filling lower court positions since President Trump took office last January, and – as I tweeted yesterday – a couple of those judges would make for some truly barn-burning confirmation hearings if nominated, as well as being solidly constitutionalist jurists.
But one name on the long list of prospective replacements is already getting some buzz in conservative land: Sen. Mike Lee, R-Utah.
Two of Lee’s high-profile friends, LevinTV host Mark Levin and Sen. Ted Cruz, R-Texas, have already stated their support for giving the senator the nod.
There are another two names that I think @POTUS would be well-advised to consider:
-U.S. Solicitor General Noel Francisco
-Fifth Circuit Appellate Judge Jim Ho
And, of course my friend @SenMikeLee. #SCOTUS pic.twitter.com/EDhChn9KV0
— Senator Ted Cruz (@SenTedCruz) June 28, 2018
The president's list of candidates for the Supreme Court is outstanding. That said, I would strongly encourage him to select Sen. Mike Lee. There's no doubt at all that he'd be absolutely faithful to the Constitution. And this is a life-time appointment, after all.
— Mark R. Levin (@marklevinshow) June 27, 2018
Yes, Lee has become somewhat of a folk hero of the conservative and liberty movements during his tenure in the chamber, but he would be just as important, and maybe more, on the highest bench in the land. Mike Lee has far more than mere political celebrity going for him on this front.
Lee often takes flak from the Left for his staunch conservative positions on a laundry list of issues – most notably his unabashed defenses of religious liberty and the right to life, two of the most contentious issues that he would face on the bench. And his overarching motive has always been the limitation of government and the restoration of the proper constitutional order, as evidenced by his recent efforts on the Article I Project and his work to reclaim Congress’ long-forgotten war powers.
But when deciding on a Supreme Court justice, the real question, as Levin explained on his radio show hours after the news broke, is how a prospective justice understands what the Constitution is, how it works, and how the government is supposed to function as a result. Typically this is done by sifting through years of a prospective jurist’s legal opinions, and (if we’re lucky) op-eds.
However, we already know what Mike Lee thinks.
Just take a look at the last two books the senator has written. Both “Our Lost Constitution” and “Written Out of History,” while enjoyable reads that you don’t have to be a bona fide legal history nerd like me to appreciate, also give a clear picture of Mike Lee’s understanding of the Constitution.
It’s hard to imagine anyone on the long list of 25 prospective jurists who would offer the same level of certainty to conservatives anxious about the future of the court.
But there’s always a “but,” and this is one is big enough to get Sir Mix-a-Lot’s attention: An appointment to the Supreme Court would remove Mike Lee from the Senate, which has markedly fewer reliable conservatives than the House.
This would, naturally, bode well for the Swamp, especially if Lee were to be replaced with a senator with fewer reservations about playing along with D.C. business as usual, as most Senate Republicans tend to do. Big-government bills and swampy establishment gambits would meet that much less resistance in the chamber, and that would indeed be a loss for proponents of limited government.
Regardless of who Trump eventually nominates and who makes it through the toxic gauntlet of partisan opposition in the Senate, this decision will undoubtedly be one of the most consequential of Trump’s presidency.
Let the games begin.
Editor’s note: The title of this piece has been edited for clarity.