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SCOTUS shortlist: The Utah senator

Lee is an unlikely pick, but his presence in the discussion hints at what Trump values in a Supreme Court justice

Sen.Mike Lee, R-Utah, speaks during a ceremony outside of the Capitol in Salt Lake City on Friday, Sept. 18, 2020, where Interior Secretary David Bernhardt transferred ownership of two federal water projects to the state.
Sen. Mike Lee, R-Utah, speaks during a ceremony outside of the Capitol in Salt Lake City on Friday, Sept. 18, 2020, where Interior Secretary David Bernhardt transferred ownership of two federal water projects to the state.
Steve Griffin, Deseret News

SALT LAKE CITY — President Donald Trump’s nomination for the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death could be announced as early as this week. No senator has become a Supreme Court justice since 1949, but Mike Lee of Utah is one of four on Trump’s list of Supreme Court candidates for consideration now or over the next four years, in the event of his reelection.

Bio

  • Lee has served as a senator from Utah since 2011, when he ran for office aligned with the tea party movement.
  • He is the son of Rex E. Lee, the late former president of Brigham Young University and United States Solicitor General under President Ronald Reagan. Mike’s brother, Utah Supreme Court Justice Thomas Lee, is also under consideration.
  • Born in Mesa, Arizona, Lee moved with his family to Utah as an infant.
  • He graduated from BYU’s law school in 1997.
  • He clerked for Samuel Alito in 1998, when Alito was on the Third Circuit Court of Appeals.
  • In 2005, Lee became counsel to Utah Gov. Jon Huntsman.
  • In 2006, he returned to clerk for Alito at the U.S. Supreme Court.

One bill

In December 2019, Lee opposed the Fairness for All Act, a bill touted by proponents as an alliance between religious leaders and LGBTQ groups. The ACLU criticized the bill for “singling out LGBTQ people for lesser protections than other characteristics under federal law.” But Lee found it too restrictive on religious liberty, saying it “would so narrow First Amendment protections that I must actively oppose it.” The bill has not yet been put before a House or Senate vote.

Why is he the pick?

As a member of the Senate Judiciary Committee, Lee has advocated an originalist approach to the judiciary — interpreting the Constitution as its authors intended — which has appealed to the far-right wing of the Republican party. In 2018, Sen. Ted Cruz, R-Texas, wrote an op-ed supporting Lee for a Supreme Court position. “This is the judicial model that made Justices Antonin Scalia and Clarence Thomas so revered by conservatives. ... And now the president has the chance to do it again with Sen. Lee,” Cruz wrote. Also, like his brother Thomas, he would become the first justice in the history of the Supreme Court who is a Latter-day Saint.

What’s the hurdle?

At this point, the biggest hurdle to Lee’s candidacy may be the momentum building behind Amy Coney Barrett, the presumptive frontrunner. Lee himself acknowledged that on Wednesday, saying, “I expect that we’re going to see Amy Coney Barrett picked by the president, and I would support that nomination wholeheartedly.”

Key quote

“My respect for the Supreme Court and those that serve on the bench was instilled in me as a young boy. Because of that respect I know this isn’t a role sought for nor declined. This, of course, is a decision that will be made not by me, but by the president.” — Lee in 2018, on the possibility of his being nominated for the Supreme Court