A writer at National Review says Donald Trump could kill three birds with one stone by appointing Utah Justice Thomas R. Lee to the U.S. Supreme Court: (1) reward the significant percentage of Trump voters for whom the vacancy left by Antonin Scalia was their number one campaign issue; (2) mend the rift within the GOP between the Trump wing and NeverTrumper diehards like Sen. Mike Lee, Justice Lee’s brother; (3) make history by putting the first Mormon on the Court.
The Supreme Court vacancy left by the late Justice Scalia may have guaranteed Donald Trump’s victory. Exit polls show that among the 21 percent of voters who deemed the Supreme Court as the most important factor in their decision, Trump soundly defeated Secretary Clinton by 17 points. Now Trump can reward those voters with a successor worthy of Justice Scalia. And Trump has an opportunity to both mend rifts within his party — a critical necessity for accomplishing his presidential goals – and achieve a historic “first” with his selection. One name on Trump’s short list accomplishes all three: Utah Supreme Court justice Thomas R. Lee.
A recent study sought to measure how much Mr. Trump’s potential nominees were like Justice Scalia. It found two things. First, Justice Lee was clearly the potential nominee most likely to promote or practice originalism in his opinions. And when the study created an overall measure of “Scalia-ness” (called the Scalia Score Index), Justice Lee scored the highest overall — and it wasn’t even close. Additionally, recent commentary by Northwestern law professor John McGinnis argued that “Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written.” While not endorsing anyone, Professor McGinnis singled out Justice Lee by observing that “for deepening the practice of originalism, it is hard to beat Thomas Lee.” Because of Justice Lee’s pioneering work in applying linguistic tools and databases to make interpreting the law more rigorous and transparent, McGinnis contended that putting Justice Lee on the U.S. Supreme Court would potentially improve constitutional law by “creat[ing] a transmission belt from the best work of originalists in the academy to the Supreme Court.”