2020 is a year with no precedent, raising many questions about the nature and future of the American republic. And even more so with the recent death of Supreme Court Justice Ruth Bader Ginsburg.
Will the Supreme Court seat be filled before November? Who is the most likely nominee, and why? What has the Senate done in similar situations in the past?
Why is the Supreme Court so important and how has it, in a sense, taken on some of the functions of Congress?
In this episode, we sit down with Utah Senator Mike Lee, who serves on the Senate Judiciary Committee.
This is American Thought Leaders, and I’m Jan Jekielek.
Jan Jekielek: Senator Mike Lee, such a pleasure to have you on American Thought Leaders.
Sen. Mike Lee: Thank you. It’s good to be with you.
Mr. Jekielek: Well, we’re going to, of course, talk about the Supreme Court. You were one of the nominees or the potential nominees for the Supreme Court by President Trump at one point. I think you’re still on the list, actually, technically, I don’t know exactly. And I also understand that you’ve been watching the Supreme Court since you were 10 years old, which is pretty incredible, like actually watching your father in front of the Supreme Court.
Sen. Lee: Yes, everybody does that, of course. But then I started going to the Supreme Court when I was about 10 years old to watch my dad argue in court. It was just mostly a good excuse to miss school occasionally and do so with my parents’ blessing. Over time, I found it was actually really interesting, and it’s been kind of a hobby ever since.
Mr. Jekielek: Well, is that what inspired your legal career?
Sen. Lee: Yes, I think so. It’s something I grew up around, and I didn’t think much about it at the time. I didn’t think necessarily at the time, “I’m going to be a lawyer.” But the sounds associated with an appellate argument became familiar to me at a young age, and I found it interesting.
Mr. Jekielek: We’re in a very interesting situation right now. People have been saying that it’s a very intense election and the fact that a Supreme Court vacancy—maybe there will be an attempt to fill a Supreme Court vacancy, that just takes things to a whole other level. Why are people saying that?
Sen. Lee: Well, because it does. If you just watch the activity outside the Supreme Court building itself, you’ll see that anytime there are arguments being heard, and even on many occasions, when the court’s not even in session, there are people out there protesting or signaling their support or their opposition to this or to that.
There are a number of reasons for this. Most of them have to do with the fact that over the last few decades, the court has taken on a more prominent role in resolving certain social disputes. And in many cases, taking debatable matters beyond dispute, taking questions that ordinarily would have been left for the political branches of government, either within the federal government or within the states, and moving them to Washington and resolving them through the judiciary. Predictably, this has resulted in a really politicized version of the court’s public perception.
Mr. Jekielek: So the President just recently said that he wants to have nine justices on the Supreme Court for the election because he expects that the election will be contested, and this is important. What are your thoughts?
Sen. Lee: Yes. There are good reasons to want to have nine justices on the Supreme Court. There are of course mechanisms in place to deal with what happens with an equally divided panel. If you have an equally divided court, then the lower court ruling stands. In this circumstance, we’re approaching a presidential election, one in which there’s been an unusually surprisingly open series of arguments made about plans to contest the results of the election.
You’ve got certain people advising the Biden-Harris campaign that they should fight, they should litigate, up until and including this January 20, 2021. In light of that, one can certainly imagine scenarios in which it might work its way up to the Supreme Court. In that circumstance, it might be helpful to have an odd-numbered rather than an even-numbered group of justices handling that.
Mr. Jekielek: So you imagine you have a particular person that you would recommend for this. I’ve seen that in the news and so forth.
Sen. Lee: Yes. The list, or the series of lists that have been assembled together into one comprehensive list by the president seems to have been whittled down.
Mr. Jekielek: I think he’s saying it’s five now.
Sen. Lee: Yes, I think it’s five. I really think it’s down just about to one. I think he’s most likely to choose Amy Coney Barrett. I’ll be surprised at this point if he chooses anyone else. She seems to be exactly what he’s looking for. She is a former law clerk to Justice Antonin Scalia. She’s been educated and trained in the mold of not only her former boss, Justice Scalia, but my former boss, Justice Alito, and Justice Clarence Thomas. Those are the kinds of Justices he has been promising to nominate.
And she is a textualist originalist. She views her role as a judge as involving the interpretation of the law based on what it says, based on what words are used, and how those words were understood publicly at the time of their adoption, either into the Constitution or into whatever statute’s being interpreted. It’s exactly the kind of Justice President Trump wants and that the country needs right now. So I think it will be her and that it should be.
Mr. Jekielek: This is actually kind of your approach as well, right?
Sen. Lee: Yes, yes. From everything I’ve been able to discern from her writings and her approach and from my review of her when she came through as a nominee for the U.S. Court of Appeals for the Seventh Circuit, where she now serves, she very much shares my approach to the law and the Constitution and the role of a judge.
Mr. Jekielek: So what do you make of this? I’ve seen some people saying that she’s a member of an unusual religious grouping.
Sen. Lee: That she’s a Catholic? I mean, if people are seriously going to make this argument, they’re going to be offending not only a large swath of the American population consisting of those individuals in America who are Catholics, but also just about all other religious people and many non-religious people.
Other religious minorities—I’m a member of a religious minority faith, the Church of Jesus Christ of Latter Day Saints—we, like many other religious minorities, don’t take kindly to other religious individuals being bullied as a result of their faith. So if they’re suggesting that she’s part of some extreme group, I’m going to ask, “Why, in the first instance, are we looking into her religious beliefs? Secondly, why are you disparaging the Catholic faith?”
There are at least two, maybe three provisions of the US Constitution that prohibit that. Article Six bans the use of religious tests. The First Amendment guarantees a right to free exercise of religion, and it also contains an Establishment Clause. We’re not supposed to be looking at things like this. And then moreover, more to the point, they’re utterly irrelevant here. Religious bigotry has a curious way of working its way and burrowing itself into our political culture. If it tries to work its way in here, there’s going to be a lot of people who are understandably justifiably upset, and I’ll be right there with them.
Mr. Jekielek: This is really interesting. You just reminded me of when I saw a Huffington Post columnist who made a comment on Twitter. He said something to the tune of: people don’t realize how much the Kavanaugh hearings radicalized the conservatives. That was the comment. Your thoughts?
Sen. Lee: Look, when I hear words like that, “Right here are the group of people being radicalized,” especially in reference to the Kavanaugh hearings, I don’t remember it being Republicans, or religious Americans, or conservatives, or textualists, or originalists who were screaming and yelling things in the faces of senators going to vote.
It wasn’t any of those groups of people who were sending death threats or doxing members of the Senate Judiciary Committee or members of the Senate or members of their families. So if we’re going to talk about any group that’s been radicalized, I think someone at the Huffington Post or someone else who shares that particular view and is casting that aspersion on Republicans needs to ask a few questions about who exactly is being radicalized and what that means.
Mr. Jekielek: What do you expect will happen once the nomination comes in? I understand it’s coming in on Saturday.
Sen. Lee: Once the nomination is made, there will of course be a lot of media interest immediately in the nominee, and I’m sure there will be a lot of interviews given about the nominee, people who went to grade school and junior high and high school and college and law school with the nominee.
And then, within a week or two, the Senate will begin its processes. The Senate Judiciary Committee, on which I sit, we’ll hold hearings. We’ll hear from the nominee herself. We’ll hear from other witnesses who will tell us things about the nominee. We’ll have questions to ask of the nominee herself. And at the end of that week, we will conclude that round of hearings. We’ll have opportunities most likely to ask questions in writing. And about a week after the conclusion of the nominee, we will vote the nominee out of committee.
Mr. Jekielek: Do you expect this to be anything like what we saw with the Kavanaugh hearings?
Sen. Lee: Sadly, I won’t be surprised if it turns out that way. Now, obviously, it’s not going to be exactly the same thing because it’s not the same person. But because we have politicized the Supreme Court, because we have allowed the court to step as far into the political realm as it has over the last few decades, it’s almost inevitable that there will be a lot of emotional reactions to whatever happens here. This is understandable.
It’s also tragic. The judiciary is supposed to be the least dangerous branch because it looks in the rearview mirror. It doesn’t look forward. In other words, it’s not there as a policymaking body. It’s not there to say, “This is how things should be and must be and will be moving forward.”
It’s there to look in the rearview mirror in the sense of saying, “As of the date in question, the law said x, and that’s what we’re here to decide.” What the law said on this particular date has to be ascertained based on the original public meaning of the words as they were put into law or as they were put into the Constitution at the time they were put in.
So look, it is a lot less of an emotional exercise if you accept that that is the job of the jurist: to decide what the law said at a particular time or what particular words meant at the time they were passed into law or put into the US Constitution. That’s not likely to be made a hot button controversial issue from one day to the next if that’s all you’re using the judiciary to do.
If instead, the judiciary is out there looking for ways to radically change our culture or to decide controversial issues of social policy, yeah, you’re going to have a lot of emotion behind it. I think that’s unfortunate. It’s also unnecessary.
Mr. Jekielek: So I’ve been thinking about your approach, as I know a little bit about your thoughts about the congressional role when it comes to law and the judicial role. There’s something called judicial overreach, right? And then I don’t know if there’s such a thing called congressional underreach. But I think you’ve been arguing that the Congress isn’t doing its job sufficiently.
Sen. Lee: Yes, yes. They’re all related. By the way, I should note a lot of people talk about judicial activism or judicial overreach, which is bad, but I believe it’s equally bad for there to be judicial underreach, or judicial passivity. Either one of those is equally bad. It’s equally bad for a court to ignore a constitutional defect in a statute and let it stand, as it is for a court to strike down as unconstitutional a law that is in fact not unconstitutional.
They’re both abuses or misuses of the judicial power. They’re both equally repugnant to the rule of law and to the Constitution. We facilitate, in many ways, judicial overreach and in fact, we have in some ways propelled it. We’ve in some ways created it, not necessarily on the front that involves invalidating statutes as unconstitutional, as much as we do in excessively delegating our lawmaking power, in some instances to unelected, unaccountable bureaucrats within the executive branch of government.
And in some cases, we, as a de facto matter, sort of outsource some types of lawmaking to the judiciary. But the far more common type involves a delegation to the executive branch. We pass a law that says, in effect, “We shall have good law in Area X. And we hereby delegate to commission or department or division Y the power to make and interpret and enforce rules carrying the force of generally applicable federal law in that area.”
And from that moment forward, that division or department or commission is the law maker and is also the law enforcer. That’s not just something that can lead to tyranny. It’s the very definition of tyranny itself.
Mr. Jekielek: That’s fascinating. Another thing I’m thinking about right now: Judge Barrett is, as I understand, pro-life, very clearly and unambiguously. There are people that are concerned—I mean, I’ve seen a number of people concerned about this nomination—should she be confirmed, it will lead to a reappeal of Roe vs. Wade. What are your thoughts?
Sen. Lee: Okay, so as a sitting federal judge and as a likely nominee for the US Supreme Court, she’s going to be prohibited as a matter of canons of judicial ethics from commenting on what she would do, how she would rule in any particular case. There are some precedents that are so well-established that you’re not going to see a disagreement, you’re not going to see a judge hesitating when asked about that particular precedent.
For example, I don’t know anyone who would even be considered for a nomination, whether under a Democratic or a Republican president, who would disagree with the result, the outcome in Brown v. Board of Education. That’s not subject to ongoing debate, thank Heaven, because Brown v. Board of Education was correctly decided.
There are other precedents, and you’ve mentioned one line of precedent that has been more controversial, and has been the subject of ongoing litigation, and has been the subject of near constant discussion in academic and judicial circles about the nature and extent of the precedent itself, about how well-founded it was. And for that reason, I don’t think she’s going to identify any one of those cases and say, “Yes, I would overrule that.” It would be improper for her to do so.
Mr. Jekielek: One of the questions, of course, is this a federal thing to decide?
Sen. Lee: No. Right, no, it’s not. One of the many problems with Roe vs. Wade is that it’s not a federal [issue]. There’s nothing in the US Constitution, at least not in my version of it, that speaks to this particular question, that speaks to whether or to what extent or in what circumstances this particular medical procedure may be performed, or what circumstances surrounding it, who may perform it, how they may perform it, where they may perform it.
In the absence of direction from the Constitution, making that federal, unless you are talking about a federal enclave, the District of Columbia, an Indian reservation, something taking place across state lines or a channel or instrumentality of interstate commerce in a US territory, some other place where federal authority reigns supreme and where the Constitution gives Congress de facto general police powers, then that is reserved to the states.
This ultimately was a legislative decision that was made by the judicial branch. And it was in most circumstances a state decision that was made federally by the US Supreme Court. In that respect, it violated both the vertical protection that in the Constitution we call federalism and the horizontal protection that we call separation of powers. That’s why it’s so problematic.
Mr. Jekielek: Another thing that’s brought up—I think we’re around 40 days away from the election, maybe exactly 40 days as we’re speaking—is there enough time to confirm a Supreme Court Judge?
Sen. Lee: There is enough time. The time is short. We’re going to have to act quickly, but there is enough time. For much of America’s history, it didn’t take nearly as long to confirm Supreme Court Justices. It simply wasn’t all that involved. But even in the last few decades, there have been instances where we’ve been able to confirm Supreme Court Justices in roughly the amount of time that we’ve got now.
There is more than enough time, especially assuming that the nominee is Amy Barrett, for example, as I believe it will be. Judge Barrett was confirmed by the US Senate and has been a judge since then, just about three years ago. And during that three year period, she has been able to participate in the decision making process on the US Court of Appeals for the Seventh Circuit.
But it’s that three year period that would need to be most of the subject of any additional background check that needs to be done. In other words, there was a pretty comprehensive background check done on Judge Barrett, a significant paper record and file created in connection with that investigation. They can update that and supplement it for any additional information they might need within a couple of weeks’ time.
That still gives us time to then hold a hearing, a process that will take the better part of a week, and ask questions of her in person and in writing, and vote on the nominee in committee and get it to the Senate floor. We can do all that between now and the election.
Mr. Jekielek: So I’ve seen Senator Schumer very passionately, based on 2016, say that trying to confirm the Supreme Court Judge at this time for the election is the height of hypocrisy. What are your thoughts?
Sen. Lee: It’s not accurate. Look, my understanding is that in the history of the republic, we’ve had 29 Supreme Court vacancies arise during a presidential election year. Of those, 19 vacancies arose during a presidential election year in which there was what we call a united government between the Senate and the White House, meaning the Senate and the White House were under the control of the same party.
In 18 of those 19 cases, the person appointed to fill the vacancy arising during that presidential election year was confirmed by the Senate. In 10 of those cases, 10 of the 29, the vacancy arose during a presidential election year in which there was a divided government, in which one party controlled the White House and the other the Senate. In 9 of those 10 cases, the vacancy was not filled and confirmed during that presidential election year.
So there’s a clear historical trend. Most of the time, if you’ve have a united government and the vacancy for the Supreme Court arises during a presidential election year, and you’re the president, you’re probably going to get your nominee confirmed by the Senate, if there’s a united government. You’re probably not going to get your nominee confirmed if there’s a divided government.
Mr. Jekielek: So do you think this is a foregone conclusion?
Sen. Lee: It’s not a foregone conclusion in the sense that it’s unnecessary to go through the process. The process itself is important. The process—by the way, the hearings, the questions that we ask, the background investigation by the FBI, these are not compelled by any provision of the Constitution, to my knowledge. The hearings aren’t required by even any statute.
We undertake those steps anyway because we think it’s necessary to be thorough when putting somebody into this important position. I do think it’s likely, very likely that we confirm her. But that will be our assessment to make. It’s our plan, it’s our intent to confirm her. If there are problems I’m not anticipating, of course, that could change things, but the world knows a lot about Amy Coney Barrett, and those of us who plan and intend to vote for her, we’ll be surprised if there’s anything that changes that opinion.
Mr. Jekielek: It’s interesting, you’re pretty certain it will be her. That’s very interesting.
Sen. Lee: Yes, yes. I am. Now, look, I could be wrong. I’ve made plenty of predictions in the past that have turned out to be wrong. I don’t think I’m wrong about this one, just because if I were in his position, and I were looking at this particular slate of potential candidates for this position, knowing what I know about him, about the court, about those advising him, about each candidate’s relative strengths and weaknesses, it’s Amy Barrett.
Mr. Jekielek: You have been, as I understand it, or at least by some reporting, on the shortlist yourself at some point. Would you take the job?
Sen. Lee: Look, as somebody who started watching Supreme Court arguments at the age of 10 for fun, if I were ever asked to do that, I wouldn’t say no. But that’s not going to happen here. I’m not sure that will ever happen. And in the meantime, in any event, I’ve got my dream job, I love this job, and I’m going to stick with this job unless or until something changes, unless or until the people of Utah decide that it’s time for somebody else. So I wouldn’t say no, but I’m not focused on that. That’s certainly not going to happen here.
Mr. Jekielek: So while speaking about this job, I’ll reference something I mentioned a little bit earlier. There has been this suggestion that anything is on the table, assuming that this goes through. What could possibly be the “anything?”
Sen. Lee: I don’t know. I don’t really know what they mean by that. I guess I’d like to ask a series of questions to the individuals who are making that argument. I really don’t know what that means. If what they’re saying is, “We will stop at nothing.” If they’re saying, “We’re going to attack the person’s religious beliefs or their children or threaten their family,” that’s not okay.
If what they’re saying is, “We’re going to raise concerns about a particular judicial opinion that the nominee has issued,” that’s quite a different thing. That’s legitimate. If they’re wanting to raise questions about the nominee’s academic or professional qualifications, that’s legitimate.
But I don’t think there’s anything there. I mean, this is an eminently qualified jurist, an academic who comes with just really, really stellar credentials. So I’m not sure what they’ve got in mind.
But let me ask this question. I would ask this question of anyone making that argument: “Have you ever stopped and thought about what Democratic nominee, either to the Supreme Court of the United States or for that matter to any judicial position, has had his or her life ruined? His or her reputation destroyed and attacked savagely, unfairly, by Republicans in the Senate?” I’m not sure I can think of one.
Remember what they did to Brett Kavanaugh? It wasn’t fair. It wasn’t right. Remember what they did to Justice Thomas? It wasn’t fair. It wasn’t right. Remember what they tried to imply but didn’t gain any traction about my former boss, Justice Alito? So many levels of wrong.
Where does it end? We deserve better than this. If they’ve got arguments they want to make about judicial philosophy, professional qualifications, fine. But it’s not okay to say, “Everything is on the table,” implying that they can go after somebody personally, over their family, they can engage in threats. That’s not alright. The American people demand better. They should expect more.
Mr. Jekielek: It sounds like you’re an advocate for Congress doing more of its job, and then the pressure won’t be so much on the Supreme Court.
Sen. Lee: Sure, sure. I am for Congress doing its job. I am for Congress making law. I actually think we’re a significant part of the problem. We’ve been underreaching, as you put it a few minutes ago. For decades, we’ve been delegating out our power. We’ve been passive in response to executive and judicial overreach. But even worse, we’ve enabled, we’ve facilitated, we’ve even created in many instances that judicial and executive overreach. So we’re a significant part of the problem.
At the same time, the judicial branch still carries some responsibility on its own. There are some types of judicial overreach and judicial underreach that are not Congress’s fault. To be sure, there’s a whole lot that is our fault, but not all of it is. In those areas where it’s their fault, they do need to fix it.
And we as a people, we as citizens, need to retain a firmer grasp of what judicial authority is, and more importantly, what it isn’t. It’s not there to come up with a set of rules to govern society. They don’t come up with rules. They decide what the rules that have already been written say. There’s a big difference between those two. When they’ve been confused or when they’ve abused and manipulated the distinction between those two things is when we’ve overly politicized the court. That’s why we’ve got such a problem today.
Mr. Jekielek: Senator Lee, such a pleasure to have you on.
Sen. Lee: Thank you.
This interview has been edited for clarity and brevity.