The only U.S. senator who was also on President Trump’s list to be the next U.S. Supreme Court justice is hailing Trump’s selection of Neil Gorsuch to fill seat, noting both his own experiences arguing before Gorsuch and why Senate Republicans are a long way from exploring the nuclear option to get the nominee confirmed.
On Tuesday, Trump named Gorsuch to fill the seat open since the sudden February 2016 death of Justice Antonin Scalia.
Sen. Mike Lee, R-Utah, is a member of the Senate Judiciary Committee. He was also on Trump’s list of 21 people he would choose from to replace Scalia. Sen. Lee says he was not at all surprised to see Gorsuch rise to the top of a very distinguished group.
“When I first saw the list, which also included my brother, I saw Judge Gorsuch’s name and quickly concluded he could easily be the person who made it to the top of the list and ended up getting nominated. He’s that quality of a judge. He’s that caliber of a judge,” said Lee.
“Even though he wasn’t as well known as some of the others on the list, I knew in time the president and the White House would reach the conclusion that this is someone they needed to take an especially close look at,” said Lee.
Lee is familiar with legal excellence. His brother, Thomas, sits on the Utah Supreme Court and his father, Rex, served four years as Solicitor General of the United States during the Reagan administration.
Lee himself is a former Assistant U.S. Attorney and argued cases before the 10th U.S. Circuit Court of Appeals while Gorsuch was on the bench. He says the excellence of Gorsuch was easy for attorneys to see.
“He’s a tremendous judge. He’s the kind of judge every lawyer wants to appear in front of. He’s the kind of judge who, going into argument, has already read all of the briefs and all of the statutes, and all of the cases cited in the briefs, and has already formulated his own theory about what the central, most important theme of the case is,” said Lee.
“He helps lawyers get to the nub of the argument in the argument session and, in the process, prepares himself to render the best decision possible. This is exactly the kind of judge we want and need on the Supreme Court,” said Lee.
While Scalia was known for loving the verbal give and take in oral arguments and Justice Clarence Thomas rarely asks questions during oral arguments, Lee says Gorsuch speaks as much as he needs to.
“He’s engaged and his questions are pointed. They’re neither excessive not doled out penuriously. He’s very much active in the oral argument. He speaks appropriately but no more than necessary,” said Lee.
In his comments Tuesday at the White House, Gorsuch noted that faithfully interpreting the Constitution and the law means judges will inevitably render decisions they don’t like. Lee says that’s exactly how Gorsuch approaches the job.
“It’s a telltale sign of someone who is committed to textualism and originalism, these legal doctrines that came to typify and be associated with Justice Scalia and also Justice (Samuel) Alito, my former boss, as well as Justice Thomas,” said Lee.
“This is indicative of the type of careful approach that a judicial conservative takes when approaching a case. The approach is one that involves deciding what the law actually says, rather than achieving the outcome the judge deems best,” said Lee.
Lee says there will be no legislating from the bench with Judge Gorsuch.
“That’s really important. That’s exactly what we want in the Supreme Court because we want to get away from this modern tradition, this modern deviation that results in policy-making from the bench,” said Lee.
Nonetheless, Lee says there is a judicial balancing act between the extremes of judicial activism and judicial passivity that Gorsuch also understands.
“In other words, it’s just as bad for a judge to act where no action is warranted under the law as it is for the judge to refuse to act where action is warranted. Judge Gorsuch gets that. He gets that his job is to interpret the law and act where the law requires and decline to do so where the law doesn’t,” said Lee.
Several Democrats have already announced their opposition and even vow to filibuster the Gorsuch nomination. Many in the media are wondering if Republicans will invoke the “nuclear option” and end filibusters for Supreme Court picks. Lee says such talk is very premature.
“I need to point out that just because you have Democrats who are opposing him or some Democrats saying they’re going to filibuster, it’s not at all clear you couldn’t get 60 votes to end debate, to break the filibuster, in which case he’s be easily confirmed,” said Lee.
But even if Republicans don’t get to 60 votes, Lee says the GOP doesn’t have to go nuclear.
“We have tools at our disposal to make sure we get this nominee confirmed and we intend to do so. For example, we have Rule 19, the so-called ‘Two Speech Rule.’ Once invoked, it can give us a means of bringing debate to a close, even without 60 votes. If we took that or other approaches available to us, we can still get this nominee confirmed,” said Lee.
Just one day after Trump named Gorsuch, he publicly urged Senate Majority Leader Mitch McConnell, R-Ky., to use the “nuclear option” and change the rule allowing filibusters of Supreme Court nominees. While respecting Trump, Lee prefers to hold his cards much closer to the vest.
“I’m not going to tell the president how to do his job and I’m going to continue to focus on doing my job. For my purposes here in the Senate, it’s best not to signal in advance what strategy we might deploy, especially in advance of the need to do so. For all I know, we may well get 60 votes to end debate on this nominee, at which case there’s no need to even discuss the nuclear option,” said Lee.
The Gorsuch fight promises to be intense. Senate Democrats are already voting against Trump cabinet picks in large numbers and are even boycotting committee votes on some of them. Lee says that strategy is doomed to failure.
“Look, I think a lot people wanted to make a point. A lot of them have made their point. I don’t think it’s productive for them to just skip out on hearings. If they continue to do that it’s going to be their loss because they’re just going to be cheating themselves and their constituents out of their right to participate in this important process,” said Lee.
“Elections have consequences and this particular election resulted in a president in the White House who is not Hillary Clinton and resulted in a party in charge of the Senate which is not the Democratic Party. In light of that, I’d hope and expect they want to work with us to review this nominee, and to review his impressive judicial record, and hopefully get him confirmed,” said Lee.
