PROVO, Utah — Mike Lee does not believe Merrick Garland would be any more moderate as a Supreme Court justice than whomever Hillary Clinton might pick instead if she wins, pouring cold water on the idea that the judge might be confirmed during the lame-duck session after the elections.
During a debate Wednesday night with his Democratic challenger on the campus of Brigham Young University, the Republican senator spoke in nakedly political terms about his party’s refusal to grant President Obama’s nominee so much as a hearing after the death of Justice Antonin Scalia.
Lee has just hired Justice Samuel Alito’s son to be his chief counsel on the Senate Judiciary Committee, which has jurisdiction over such appointments. The senator, 45, clerked for Alito in 1998 back when he was a judge on the U.S. Court of Appeals for the 3rd Circuit.
“Make no mistake: As a former law clerk . . . I don’t believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton . . . and Merrick Garland,” he told reporters after the debate. “I just don’t think there is much, if any, difference.”
Lee argued that “the last Democratic nominee to the Supreme Court . . . who voted independently” was Byron White, appointed by John F. Kennedy in 1962.
“Not a single Democratic nominee to the U.S. Supreme Court since then has voted independently on those matters. Not one,” Lee said. “Republicans have been all over the map, all over the spectrum. Democrats vote in lock step. . . . That is how it works. I don’t think Merrick Garland would be any different. The only difference is his age.”
Clinton has carefully avoided committing to renominate Garland, and it seems likely that she would appoint someone who is younger and has a more progressive track record. Indeed, many activists on the left would go apoplectic if she stuck with the chief judge from the D.C. Circuit. There is a widespread feeling on the left that Obama squandered a big political opportunity by going with someone who he thought could get confirmed in the lame-duck session.
Age, which Lee mentioned as an afterthought, is actually a very big deal. Garland is about to turn 64, and Clinton could appoint someone in their 40s or early 50s — meaning that the justice could influence jurisprudence for another generation. Clarence Thomas, for instance, was just 43 when George H.W. Bush gave him a lifetime appointment in 1991.
During the debate, Lee complained about the “do your job” talking point espoused by Democrats and the White House, referring to Senate Republicans’ blockade on even holding hearings on Garland. He said Senate Republicans are doing their job by pigeonholing Garland.
“The Senate also acts and the Senate speaks when it chooses not to hold hearings or votes, because that’s the same result as voting the person down,” he said. “This is the Senate’s prerogative. . . . The Senate is a political body. And it’s put into the appointment process for a reason.”
Citing court decisions on abortion and same-sex marriage, Lee added: “With that politicization of the Supreme Court . . . it shouldn’t be surprising to us that the Senate has chosen to exercise its power and let the next president fill this vacancy.”
Lee’s long-shot Democratic challenger, Misty Snow, a 31-year-old transgender woman who works as a grocery-store cashier, cited a statewide survey from the Democratic firm Public Policy Polling that found two-thirds of Utah voters want Garland to at least receive a hearing. “It is shameful that every day our nation is setting a new record for the longest vacancy in the history of our nation on the Supreme Court,” she said. “I’d vote him up or down based on the merits. . . . We’ve had a number of 4-4 decisions, which lets lower-court rulings stand.”
Though Lee seems certain to vote against any Democratic nominee to the high court, he will undoubtedly be a major player in the coming confirmation battle. If Garland is not confirmed, the next president may end up with at least one, possibly two, theoretically three and maybe even more picks to the Supreme Court.
Lee is royalty of sorts in the conservative legal movement. His dad was one of Ronald Reagan’s solicitor generals and was the founding dean of the BYU law school. His brother, Thomas, is an associate justice on the Utah Supreme Court.
Last month, trying to reassure conservatives, Donald Trump included the senator’s name on a list of 10 possible picks to the Supreme Court. His brother was on an earlier list. Lee has refused to endorse the GOP presidential nominee, and it was widely perceived as an effort by the Trump campaign to coax him on board. It did not work.