Mike Lee

Could Sen. Mike Lee Replace Justice Anthony Kennedy on the Supreme Court?

His is one of 25 names on the White House's official list of potential Supreme Court picks.


Tom Williams/CQ Roll Call/Newscom

Supreme Court Justice Anthony Kennedy has written his final opinion and will retire from the bench later this summer. Sen. Mike Lee (R-Utah) has an idea about who might be a suitable replacement.

"If somebody asked me if I would consider that, I would not say no," Lee told reporters on Wednesday, not long after news broke that the 81-year-old Kennedy would be retiring. That's quite a change from two years ago, when Lee quickly shot down rumors that he would be interested in a Supreme Court appointment.

Lee might very well be asked. His is one of 25 names on the White House's official list of potential Supreme Court picks—a list that was originally put together by Donald Trump's campaign prior to the 2016 election and was most recently updated, according to the White House website where the list now resides, last November. Trump on Wednesday indicated that Kennedy's replacement would be drawn from that list, which also includes Lee's brother Thomas, who currently sits on the Utah Supreme Court.

It's likely that we will know the identify of Trump's second Supreme Court nominee pretty soon. A spokesman for Senate Majority Leader Mitch McConnell (R-Ky.) indicated that Kennedy's replacement could be confirmed before the midterm elections in November, and rank-and-file Republicans want confirmation hearings to be held sometime in August or September. Everything else that might be on the congressional agenda for the second half of the year—although there wasn't much—seems to have been knocked down a peg.

How serious is Lee's bid to be the first sitting senator named to the Supreme Court since Hugo Black in 1937? He's probably not a front-runner, as even he acknowledged Wednesday, noting that his lack of judicial experience would likely count against him.

Still, conservatives have plenty of reasons to like the prospect of a Justice Mike Lee. "I think the single best choice the president could make to fill this vacancy is Senator Mike Lee," Sen. Ted Cruz (R-Texas) told CNN on Wednesday. "I think he would be extraordinary." When he was seeking the White House in 2016, Cruz indicated that Lee would be his top pick to fill the vacancy that then existed on the high court.

Lee has been short-listed for the Court by the Heritage Foundation, a conservative think tank. He has received positive reviews from conservative legal experts and top Republican donors (the details of which were explored by The Washington Post in April 2016, when Lee's name was bubbling around the GOP primary field as a possible SCOTUS pick) and would surely enjoy broad support from his fellow Senate Republicans. And Lee's history of sharply criticizing NSA spying and his support for criminal justice reform would make it "at least possible that one or more liberal-minded senators might give him some degree of support," as Reason's Damon Root noted around the same time.

If Republicans see this Supreme Court vacancy as a chance to overturn Roe v. Wade and ban abortion—and there are some indications that they do—Lee again fits the bill. He authored the bill that banned abortions after 20 weeks in Washington, D.C.

Possibly the best argument for Lee: He is just 47*. That would make him the youngest justice since the 1960s, allowing Republicans to reshape the Court until the middle of the century, assuming that Lee would serve at least 30 years.

Losing one of the few senators with libertarian sympathies would be a blow for those who want to see Congress reassert itself as a coequal branch of government responsible for checking, rather than enabling, the power of the executive branch. Still, libertarians would be hard pressed to find much reason to complain about Lee sitting on the Supreme Court, where he could fill Kennedy's "swing vote" role and steer the court in an originalist direction.

This post has been updated to correct the age of Sen. Mike Lee. He is 47, not 44.