Supreme Court Associate Justice Anthony Kennedy, the swing vote who would sway the court rulings pretty much any way he wanted, has announced his retirement. His departure has sparked incredible (wonderful!) panic from the left, and great elation from the right. But his retirement was long expected. Rumors swirled online and in print last year that he would step down after Justice Neil Gorsuch’s confirmation. Some reports even suggested that Gorsuch helped cement Kennedy’s decision to retire sooner rather than later because of their strong friendship, which began when Gorsuch clerked for Kennedy in the 1990s.
Despite his liberal rulings on abortion and marriage (his most charitable supporters consider him libertarian), Kennedy was a longtime ally with the conservative wing of the United States Supreme Court, especially during his last term on the court. He has accomplished so much good under the Trump Administration. He sided with public sector workers to stop the legal theft of their wages when they choose not to join a union. He supported the president’s constitutional travel ban against rogue nations. He also stood with freedom of speech, striking down an abortive law which would have required pregnancy centers to inform their clients of abortion options.
So, who should replace Kennedy?
Last November, President Trump updated his list of 25 nominees, which had included Neil Gorsuch, and he will draw from that list. Unlike previous presidents, Trump has responded to input from the public as well as from his advisors. Circuit Court Judge William Pryor looked like a possibility, but the uproar about his squishy stances on individual liberty and pro-family issues have pushed him away. Shortly after his inauguration, the president whittled down his nomination to two candidates to replace Scalia: Thomas Hardiman and Gorsuch. Trump could move forward with Hardiman next. A federal circuit court judge in the crucial swing state of Pennsylvania, Hardiman carries a working-class temperament that could force Red State Democrats to vote for him.
However, based on the current, more politically fraught landscape in the U.S. Senate and across the country, there is a better pick on the president’s list: U.S. Senator Mike Lee. A sitting U.S. senator? His nomination would not be unheard of. Retired and sitting elected officials from the House of Representatives and United States Senate have served on the Supreme Court before. In fact, even a former president, William Howard Taft, served on the court—and as chief justice, no less.
What makes Lee the preferred nominee to replace Kennedy?
- He’s a staunch constitutionalist. He has written books and given many speeches on this subject.
- He has the highest rating from the American Conservative Union of all his colleagues, even higher than Cruz. He has maintained this rating even following his re-election in 2016. Normally, legislators get more “swampy” when they return to Washington. Not Lee, though.
- He would be easy to confirm. Unlike his conservative colleague Ted Cruz, Mike Lee has sought to foster peaceful relationships with every member of the United States Senate, but he still voted along his conservative principles. Senate rules permit Lee to vote for himself. Even without McCain, 50 votes plus Vice President Mike Pence would get him confirmed. At least two Red State Democrats would support Lee, too.
- He’s not a knee-jerk Trump supporter. Independence is crucial to begin with for our Supreme Court nominees. Politically, this decision is going to raise more ire from the left and within the Democratic caucus. Socialists are cannibalizing the establishment, and their representatives need to do everything they can to appease them. They can’t vote for a “Trump” cheerleader. Even within the GOP caucus, there are Republicans who are wary of Trump and want to stand apart, including the two moderate Republicans Susan Collins and Lisa Murkowski. They can vote for Lee and not worry about offending their moderate-liberal sensibilities.
- He wants to restore federalism and separation of powers. Enough said. His push to restore tariff setting powers to Congress is one proof of this, regardless of the powers behind the scene lobbying for this legislation.
- He’s had an avid interest in the Supreme Court since he was a kid, and his father served as Solicitor General of the United States.
- He’s young. At 47 years, he is one of the youngest prospective nominees on the list. In North Dakota, Trump said he wanted someone who would stay on the court for 40 to 45 years. Someone like Lee would meet that need.
On a broader note, the Utah senator could provide the constitutional correction needed to curb the federal judiciary. Following from the power of judicial review established by Marbury vs. Madison, the Supreme Court has arrogated too much power to itself. Any legislation which falls within the 9th and 10th Amendment, which outlines powers unwritten in the Constitution and belonging to the states and the people, have been routinely struck down. Based on his temperament, voting record, and rhetoric, Supreme Court Justice Lee could restore checks and balances among the states as well as among branches in the federal government.
Pundits left and right view Lee as the likely choice, too. Vox Magazine lists him as a conservative favorite, as does U.S. Senator Ted Cruz, radio host Mark Levin, and the Governor of Utah. Bloomberg News reports that he is in active consideration.
Last of all, Lee’s appointment would not risk the GOP Senate Caucus majority. Despite the precarious partisan divide, Lee’s seat would not fall into Democratic hands. He won re-election in 2016 by an overwhelming margin. The Governor of Utah could appoint the solid, well-known Dr. Michael Kennedy to replace Lee without any trouble.. There’s no chance of a Roy Moore redux occurring in Utah.
A century ago, another Republican U.S. Senator from Utah, George Sutherland, won confirmation to the highest court. A clear-cut conservative who relentlessly opposed the New Deal and a telling precursor, Sutherland sounds a lot like Mike. President Trump should select Mike Lee for the Supreme Court.