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Mike Lee is the conservative favorite to take a seat on the Supreme Court

But the senator’s past positions — and views on Trump — might pose a problem.

Sen. Mike Lee, R-Utah., speaks during the Senate Republicans’ news conference in the Capitol on Tuesday, June 19, 2018, to call on the Senate to vote on the rescissions package.
Bill Clark/CQ Roll Call

Conservatives reacting to Wednesday’s announcement of Supreme Court Justice Anthony Kennedy’s retirement already have a popular choice for his replacement: Sen. Mike Lee.

Lee, from Utah, is a firebrand conservative and original Tea Party member loved by many libertarians and conservatives, but despised among establishment Republicans who saw his hardline moves as self-defeating.

Last summer, for example, he torpedoed a Republican plan to repeal Obamacare. “It seems like he’s against everything right now,” his fellow senator from Utah, Orin Hatch, said in an interview with Politico. “That’s the way it looks to me.”

And he’s widely blamed for helping Sen. Ted Cruz shut down the government in 2013.

When Lee ran for reelection in 2014, fellow Utah Republican Jon Huntsman called him an “embarrassment to our family, to our state, to our country to have him as a U.S. senator”

Though Lee is a lawyer, he’s not a traditional pick for a Supreme Court justice, as he’s not a legal scholar or sitting judge.

Nonetheless, Lee’s on President Donald Trump’s short-list of potential Supreme Court picks, and the senator has already said he “would not say no” if asked to serve.

Longtime friend and ally, Cruz, told Fox News that Lee would be his ideal choice.

Other conservatives and libertarians echoed similar views on Wednesday, including conservative writer Erick Erickson, Fox News commentator Guy Benson, and Commentary magazine’s John Podhoretz.

Reason magazine’s Eric Boehm wrote Wednesday, “conservatives have plenty of reasons to like the prospect of a Justice Mike Lee,” and added, “libertarians would be hard pressed to find much ... 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 isn’t the first time Lee has been pushed by conservatives as a possible Supreme Court choice; in 2016, after the death of Justice Antonin Scalia, Lee had the support of many Republicans as a potential Trump SCOTUS nominee, including then-Sen. Jeff Sessions and the powerful Heritage Foundation, which described Lee as having a “deep devotion to the Constitution” and added, “his speeches and writings ... reflect a keen desire to restore important constitutional principles, which he acknowledges is a daunting endeavor.”

Lee’s political views are a mixed bag of traditional conservatism and pro-privacy libertarian (a la Kentucky Sen. Rand Paul, with whom Lee has voted against major defense bills, breaking with the GOP). It’s unclear just how realistic his chances are of landing on the Supreme Court, given both his past disagreements with other conservatives and his history with President Trump.

But the fact that he’s in the mix shows that at least some conservatives view him as just the “strict constructionist” they’re looking for on the Supreme Court — complete with Tea Party leanings and a willingness to divide.

Lee’s ideology isn’t straightforward

Lee is a former Supreme Court clerk and served as assistant United States attorney before entering private practice and ultimately running for the Senate. Since winning his 2010 race in the mist of the Tea Party movement, he’s been a reliable conservative in the Senate.

But the lifelong Republican is, as one conservative writer told me, “libertarian in his construction.” In 2011, he voted against both extending provisions of the Patriot Act based on privacy concerns and against the 2012 National Defense Authorization Act. And in 2014, he joined with Sen. Dianne Feinstein (D-CA) to write an amendment to that year’s National Defense Authorization Act to stop indefinite detention of Americans without trial.

Lee said that the purpose of that amendment, the Due Process Guarantee Act, was to “guarantee the right of the American people, while they exist, while they live from day to day, on U.S. soil, that they will be free from indefinite detention without trial, without the rights protected by our Constitution, without the rights that we’ve come to associate with our habeas corpus guarantees and other constitutional protections.”

In 2017, he joined a bipartisan group of senators to write a bill to end the indefinite detention of Americans, writing, “the federal government should not be allowed to indefinitely imprison any American on the mere accusation of treason without affording them the due process guaranteed by our Constitution.”

In a statement on Wednesday regarding his interest in a seat on the Court, Lee said, “I started watching Supreme Court arguments for fun when I was 10 years old. The president’s got a decision to make and I trust his ability to make it and make it well.”

Is Lee loyal enough to Trump?

There’s one potential stumbling block for Lee’s nomination to the Court: Lee never endorsed Trump during the 2016 presidential race. He even asked Trump to quit the race in October 2016 in a video posted on Lee’s Facebook page and aimed at Trump.

“I respectfully ask you, with all due respect, to step aside. Step down, allow someone else to carry the banner of these principles ... rather than weighing down the American people.”

Senator Mike Lee reacts to today's revelations regarding Donald Trump's disappointing behavior.

Posted by Mike Lee on Friday, October 7, 2016

And since the 2016 election, Lee has also voiced his opposition to some of Trump’s policies. Most recently he’s gone against Trump’s decision to impose tariffs on steel and aluminum, on which Lee wrote at the Daily Signal, “If you work in manufacturing, your job was just put at risk.”