Republican Sen. Mike Lee of Utah is not in serious contention to replace Justice Anthony Kennedy on the U.S. Supreme Court, The Daily Caller News Foundation has learned.
TheDCNF reported Monday that Trump has narrowed the field of potential candidates to two top contenders: Judges Brett Kavanaugh and Amy Coney Barrett.
A senior administration official told TheDCNF that Lee is on the list of possible nominees, but that other candidates are being given more serious consideration. Other sources connected to the process confirm that the senator is not a frontrunner, and senior GOP Senate aides are extremely skeptical about his viability.
TheDCNF learned that former GOP Sen. Jim DeMint of South Carolina called the president to press for Lee’s nomination in recent days. A spokesman for DeMint declined to comment on the particulars of the phone call.
Republican Senate staffers note Lee has taken explicit positions on a range of issues, including Roe v. Wade, that would galvanize liberal opposition and make it practically impossible for moderate, pro-choice Republicans like Sens. Susan Collins of Maine and Lisa Murkowski of Alaska to support him.
Collins has already shown her cards on the abortion issue. The Maine senator said Sunday that she would not consider a nominee who that was in favor of overturning Roe v. Wade.
“I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me their judicial philosophy did not include a respect for established decisions, established law,” Collins told CNN’s Jake Tapper Sunday morning. “I believe that is the very important fundamental tenant of our judicial system, which as Roberts says, helps to promote stability and even handedness.”
Other Senate aides predicted that a tight confirmation vote could back Lee into the awkward spectacle of voting for his own nomination, which would be optically disastrous for the White House and the GOP. (RELATED: These Are Trump’s Two Top Picks For The Supreme Court)
Sen. Ted Cruz of Texas immediately floated his friend and Senate colleague’s name to replace Kennedy, calling Lee the one and only choice Trump should consider.
“I think the single best choice that President Donald Trump could make to fill this vacancy is Senator Mike Lee,” Cruz told Fox News June 28. “The reason why I think the best choice that President Trump could make is Mike Lee is because I know beyond a shadow of a doubt that Mike Lee would be faithful to the Constitution and Bill of Rights and that he’s not going to evolve and turn into a David Souter. He’s going to honor his commitment.”
DeMint published an opinion piece on The Daily Caller Monday urging Trump to select Lee for Kennedy’s seat.
For his part, Lee has not been coy about answering whether or not he would accept the nomination if Trump offers, telling reporters the same day Kennedy announced his retirement that he would, in fact, “not say no” if a formal offer was made.
The Utah senator told the “The Doug Wright Show” the same thing in January 2017 when asked whether or not he would accept the nomination.
Lee, notably, told Fox News on June 28 that he would vote, as a sitting senator, in favor of his nomination to SCOTUS if it came down to that.
“My understanding is that is what the Senate rules allow and that you are still a senator until you are no longer a senator,” Lee told Fox News when asked if he would vote to confirm himself. “You are still a senator at the moment you are being considered for something like that.”
Before his election to the Senate, Lee was an attorney in private practice who clerked for Supreme Court Justice Samuel Alito. The senator’s brother, Utah Supreme Court Justice Thomas Lee, is also on the president’s list of possible Supreme Court picks.
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