Sen. Mike Lee on the Role of a Supreme Court Justice

– Senator Mike Lee, thanks
for sitting down with us. The President has chosen a nominee for the Supreme Court and probably 100% predictably, the Democrats are just going bananas. And you know, infamously
press releases went out with “Oppose candidate XX.” – XX, yeah. (mid tempo electronic music) – I thought it’d be good to get out of the freaking out rhetoric and talk a little bit about what we’re actually looking for when we look for a Supreme Court justice. And you’ve set a standard. Tell us what that standard is. – The standard I look
for, the standard I apply is I want somebody who might be described as a textualist originalist. You could also say a Constitutionalist. But by textualist originalist
I mean somebody who is going to look at the text of a statutory provision or of a provision of the Constitution and say, what does it mean? What do these words mean in this context? And have that as the objective
for deciding the case. I want somebody who, if
examining a provision of the Constitution is willing to go back and examine how those words
were commonly understood at the time they were put
into the Constitution. Not necessarily with an
eye toward discerning what any individual subjectively intended. But rather how the terms were used and commonly understood at the time. Those two things help
us make sure that judges are actually judging. And they’re deeply rooted in my belief that judges have a distinct role, a role that Alexander
Hamilton defined pretty well in Federalist #78. He said that the role of the legislator is to exercise will. The role of the jurist
is to exercise judgment. There is a difference between the two. Judgment entails a sort
of backward looking. Looking back and deciding
what the law said, what it meant, and how it applies to the facts of a particular case. That’s what we want. – And this test is not really captured in this, in the typical is he too conservative, is he too liberal? Where is he on Roe v. Wade, those kinds of issues. And so it’s not really a
left versus right thing. It’s a proper role of the judiciary. – Yeah, that’s exactly right. I sometimes refer to it as judicial conservatism. Even that sort of distorts
the picture a little bit, because it implies a political outcome. And that’s the opposite of what we want. We want someone who is
not outcome-oriented. We don’t want someone, for instance, who is gonna say I decide what outcome seems the
most fair, the most just and then I back the law into that position, or
I let the law catch up. There actually have been
justices in recent history who have described their
jurisprudential approach in almost those exact terms. That’s very disturbing. Because that’s not judging. That’s something else. What we want is someone
who will judge each case on the basis of what
the law actually says. And as you point out, that doesn’t really fit neatly along the political ideological spectrum. It’s an approach to judging. Nor does it necessarily lend itself well to a phrase that President George W. Bush sometimes used. He used to say, “I’m looking
for strict constructionists.” I think I know what he was
trying to say with that but I’ve never been comfortable with that phrase in particular. Because you’re not necessarily saying I want someone who will strictly construe a provision of the constitution. You don’t want them to construe it either too strictly or too broadly. You want them to figure out what it says and then apply it appropriately. And that’s one of the many reasons why this defies the traditional left versus right paradigm. – Okay, thank you. – Thank you. (mid tempo electronic music) As a Mormon missionary,
I used to sit on the edge of my seat just to maintain connection. And that habit has never died. (crew members laughing) – You know, they teach
you to do that for TV, and I’m not actually sure it looks better. I’ve tried it all, and maybe it’s just that I don’t look good on TV. It could be that. – I’ve got a face for radio, so. – Yeah. (mid tempo electronic music)

1 Response

  1. Spencer Lane says:

    Charming outtake! I'm glad we have at least one Mike Lee in the Senate.

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