Why Right-Wingers Want Sen. Mike Lee on SCOTUS

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Republican Candidate Sen. Ted Cruz Campaigns In Provo, Utah
As someone who could pull the Court to the far right for eons, Lee may be scarier than his friend Ted Cruz.Photo: George Frey/2016 Getty Images

The Republican battle to make Barack Obama’s Supreme Court nominee Merrick Garland go away, and the efforts to pin down GOP presidential candidates on pre-vetted lists of potential Supremes, have all led to increased speculation about the next justice. At present, there’s a major boom among conservatives for Senator Mike Lee of Utah. 

Today the Washington Post’s James Hohmann offers a rundown on all the reasons Lee is enjoying this attention. For one thing, the Utah senator has long been considered Ted Cruz’s best friend in the upper chamber, so if Cruz is elected, it’s a bit of a no-brainer if Lee wants a robe. For another, Lee would probably have an easier time getting confirmed by his colleagues in the clubby Senate than some law professor or circuit-court judge, and might even avoid a Democratic filibuster (assuming Republicans haven’t already killed the SCOTUS filibuster via the “nuclear option”). 

But one of the two most important reasons for the Lee boom is buried pretty far down in the story:

Lee is just 44. That means he could squeeze four or more decades out of a lifetime appointment.

Yep. If nominated next year for the Scalia seat, Lee would be the youngest nominee since Clarence Thomas, who has now been on the Court for nearly a quarter of a century, with many years of extremism probably still ahead of him. Before Thomas, you have to go all the way back to Bill Richardson’s favorite justice, Whizzer White, in 1962, to find a nominee as young as Lee would be. As you may have noticed, life expectancy has been going up for Americans in recent decades. For conservatives seeking a permanent grip on the Court and on constitutional law, someone Lee’s age is money.  

But the second reason Lee would be significant is only hinted at by Hohmann in the praise lavished on the solon by the Heritage Foundation and longtime right-wing legal thinker Senator Jeff Sessions (the two most likely sources for SCOTUS advice for Donald Trump, as it happens). Lee’s not just any old “constitutional conservative”; he’s a leading exponent of what is called the Lochner school of constitutional theory, named after the early-twentieth-century decision that was the basis for SCOTUS invalidation of New Deal legislation until the threat of court-packing and a strategic flip-flop resolved what had become a major constitutional crisis.  

Lee has, on occasion, suggested that child labor laws, Social Security, and Medicare are unconstitutional, because they breach the eternal limits on federal power sketched out by the Founders. Like most Lochnerians, he views the constitution and the courts as designed to keep democratic majorities from stepping on the God-given personal and property rights of individuals and corporations alike. So it’s no surprise he’s been a bitter critic of the deferential view towards Congress expressed by Chief Justice Roberts in the decision that saved Obamacare. 

In effect, Mike Lee could become a more influential successor to Clarence Thomas — after overlapping with Thomas on the Court for a decade or two. If Democratic senators have a problem with that possibility, they might want to begin making noises about it so that at least the supposition that Lee is pretty easily confirmable may be called into question.