Senator Mike Lee Open to Supreme Court Appointment

Senator Mike Lee, one of the most popular Tea Party figures in Washington, says he is open to serving on the Supreme Court someday, if asked.

“If one of my friends running for president got elected president, and asked me to consider that, if the question is would I consider it, the answer is yes,” Lee told msnbc in an interview airing Tuesday.  The freshman senator is known for his close ties to three other young senators currently eying the White House – Rand Paul, Marco Rubio and Ted Cruz. 

Lee’s name has been floated as a potential conservative pick for the court, and his pedigree makes him an attractive candidate for a Republican president. He’s served conservative posts as a lawyer, including clerking for Supreme Court Justice Samuel Alito; he has the support of the base and Tea Party (qualities lacking in failed nominees like Harriet Miers); and at the age of 43, he could join the court and shape the law for decades to come.

Lee was exposed to the Court at a young age, attending oral arguments with his father, Rex Lee, who served as President Reagan’s solicitor general.  But he says it took some time for the law to grow on him. “It felt like church in a foreign language – you had to sit very still, be really quiet, for a ten year old boy, that’s not always interesting,” Lee recalls.

Today, Lee is one of the Republican Party’s legal experts, not only on Supreme Court issues, but also on how the Constitution should guide the party’s governing and political approach. His new book, “Our Lost Constitution,” argues that Congress and the federal bureaucracy have expanded beyond the Constitution’s original limits on federal power, and that massive, unauthorized surveillance is violating Americans’ Fourth Amendment rights. The first argument fits neatly with G.O.P. orthodoxy calling for less government; the second conflicts with the party’s recent national security legacy.

With surveillance powers under the Patriot Act set to expire this month, and Sen. Rand Paul preparing a filibuster of legislation to renew it,  the battle over civil liberties is moving to the forefront of the Senate and possibly the 2016 presidential race.  Lee wrote a bill to force privacy protections onto the N.S.A.’s bulk data collection, and after years of extensions of the Patriot Act and N.S.A. authority, now he thinks the civil libertarians can win.

“I think the timing is right,” Lee says. “I think we could win this. We’ve got strong support. We’ve got the committees, both the House Intelligence Committee, and also the House Judiciary Committee have signed off on this. We’ve got growing support on both sides of the capital for this,” he says. (The bill, the U.S.A. Freedom Act, previously passed the House and drew 58 votes in the Senate in 2014, but was blocked.)

While Lee has a coalition of libertarian conservatives and Democrats behind him, N.S.A. defenders still have party leadership on their side.  Majority Leader Mitch McConnell is pushing to renew the Patriot Act without any privacy amendments, and he argues nothing in the Patriot Act “has ever, ever been found to be unconstitutional,” and few of the authorities have been challenged in court.

Asked about that claim, Lee was ready with a thorough, lawyerly rebuttal.

“His legal statement — the part of that statement that goes to that issue — is correct as far as that statement goes. But listen to what he is saying: ‘None of them have ever been found to be unlawful, and most of them have never been challenged.’ So there are few reasons for that,” Lee explained. “First of all, the American people weren’t aware of this program, so it’s not exactly something that could be challenged right away anyway.”  That secrecy is a major issue in the cases which have gone to court, and Lee is correct that before Edward Snowden’s revelations, there was no public proof of the bulk data program. 

“Secondly, regardless of whether of any of these have ever been found to be unlawful,” Lee continues, “that doesn’t necessarily mean that it’s fully consistent with the text and the historical understanding of the constitution — both the letter and the spirit of the law. Nor does it mean that it’s consistent with the privacy interests associated with the fourth amendment generally.”

Asked whether McConnell’s basically offering a bogus talking point, however, Lee is assiduously respectful while pressing his case. 

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“I don’t think it’s a talking point that carries the day,” he says.  “I’m not going to go so far to call it bogus, because I don’t think that’s helpful. It’s not a talking point that carries the day for me — because I think the question of whether something has been invalidated by the Supreme Court is different than the question whether it’s fully constitutional.” 

This is a subtlety that may be lost on many members of Congress.  Lawmakers often view the courts as a backstop for legislation – they write out their objectives and if anything goes too far, the courts can toss it out.  Lee hails from a school of constitutional thought that believes legislators should apply constitutional limitations to themselves.

“The constitution ought to be a filter in every stage in government,” Lee says. “In other words, a member of Congress ought not look at the Constitution as something that is synonymous with ‘whatever the Supreme Court will or won’t allow… Will or won’t, step-in and invalidate.’”  Instead, Lee says that rather than “simply trying to predict what the Supreme Court might do,” legislators should exercise constitutional restraint to avoid actions they believe conflict with their understanding of the Constitution.

There are some logical benefits to this approach – Lee notes that “not every action of government, not every law, will necessarily trigger the kind of dispute that’s going to wind up in court.” And members who take an oath to uphold the Constitution obviously shouldn’t take actions in office that knowingly violate it.  But in the areas of debate – what the Constitution might say, or what a politician wants it to say, it’s not clear how a subjective definition of constitutional limits would change what most legislators do. 

Furthermore, recent history has not been kind to the use of the Constitution in our polarized politics – after few objections in the Bush years, many Republicans have newly discovered constitutional concerns with President Obama’s executive actions, and many Democrats who protested President Bush’s national security state have made peace with many of the same policies under Obama. For his part, Lee insists he will not use a partisan lens to uphold the nation’s founding documents.

Lee says he understands the concern about double standards, but on spying and civil liberties, among other issues, he will stay consistent.

“I could tell you that regardless of who becomes president in 2016, even if it’s a Republican, this concern for me isn’t going to go away. This is an issue that’s neither Republican nor Democratic. It’s not necessarily either liberal or conservative, self-described liberals and self-described conservatives end up on both sides of this issue, so to me this a constitutional issue.”