In a recently published research paper, legal scholars identified what it meant when President-elect Trump said he’d fill the vacant Supreme Court seat with a justice like Antonin Scalia.
In “Searching for Justice Scalia: Measuring The ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court,” the researchers determined which among Trump’s stated candidates for the job would exhibit Scalia’s jurisprudence and style.
“This study proposes three empirical measures of what made Justice Scalia Justice Scalia,” the authors wrote. “First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings, writings that were not about the substance of the law but about how to think about interpreting the law. And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court.”
Based on these measures the researchers developed the “Scalia Index Score,” which they say gives an objective way to measure potential SCOTUS picks against Scalia.
Based on this index, the candidate with the highest score, and thus most similar to Scalia, is Utah Supreme Court Justice Thomas Lee.
After Lee came Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals, and Judge William Pryor of the 11th U.S. Circuit Court of Appeals.
Lee, whose brother is Utah GOP Sen. Mike Lee, is a graduate of University of Chicago Law School and clerked for Justice Clarence Thomas at the Supreme Court. He was briefly in private practice before joining the faculty at J. Reuben Clark Law School at Brigham Young University. He held several posts at the Department of Justice during the Bush administration before his appointment to the Utah Supreme Court in 2010.
Others have also noted the similarities between Lee and Scalia.
