At NRO, Hanna Smith (Becket Fund for Religious Liberty) makes the originalist case for nominating Justice Thomas Lee of the Utah Supreme Court: Replacing Justice Scalia: A Proven Originalist from Trump’s List. From the core of the argument:
In his years on the Utah Supreme Court, Justice Lee has stated that judges must “implement the principles of the constitution as originally adopted because that is the very point of having a written constitution.” He has also held that “it should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text.” Originalism, he writes, “is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws.”
In Scalia- and Thomas-like fashion, Justice Lee has insisted that “achieving outcomes that satisfy our policy preferences is not our function.” Rather, judges “are tasked . . . with deciding the cases that come before us in accordance with the rule of law — whether or not it yields an outcome we favor on policy grounds.” He has opined that “as judges we take an oath to uphold and defend the constitution,” which calls for interpreting the law based on “what it originally meant” when enacted, not on a judge’s “instincts or beliefs.”
In one important respect — his approach to judicial precedent — Justice Lee is more like Justice Thomas than like Justice Scalia. Justice Thomas (for whom Justice Lee clerked) adheres to the view that the Constitution as written trumps judicial opinions that clearly break with the Constitution. Justice Lee has repeatedly advocated for overruling precedent that is “contrary to the original meaning of the Utah constitution.”
These views are not mere talking points, but positions affirmatively staked out in Justice Lee’s judicial opinions. What you see is what you’ll get with Justice Lee – an originalist judge who will uphold the Constitution as written. He can be trusted to walk the Scalia walk because he already has, as a judge on the highest court in his state. In short, his opinions confirm that Justice Lee has a well-developed theory of judging — patterned after Justice Scalia’s – that ensures he will be a voice for the rule of law.
The post also notes that Justice Lee, like Justice Scalia, was a professor before becoming a judge; that he would make history by being the first Mormon on the U.S. Supreme Court, and that:
Nominating Justice Lee will also help unite Republicans following an acrimonious election. In his acceptance speech, Mr. Trump reached out to groups — including many conservatives — who did not support his candidacy, seeking their “help” to “unify our great country.” Nominating the brother of a prominent conservative leader who did not support Mr. Trump (Senator Mike Lee of Utah) would go a long way toward fulfilling the magnanimous spirit Mr. Trump displayed on election night.
Meanwhile, at Powerline, Scott Johnson argues for Minnesota Supreme Court Justice David Stras: A Word for David Stras. Key points:
Justice Stras respects the role of the judiciary and the Constitution’s separation of powers. Justice Stras holds that the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.” State v. Ali, 855 N.W. 2d 235, 268 (Minn. 2014) (concurring). Justice Stras’s concurrences and dissents, in particular, repeatedly emphasize that courts are bound to respect “fundamental limitations on our authority[.]” He holds that courts are to resist the temptation to encroach on legislative functions and become “a junior-varsity legislature.” In re Guardianship of Tschumy, 853 N.W.2d 728, 752-53 (Minn. 2014) (dissenting); State v. Crawley, 819 N.W.2d 94, 118 (Minn. 2012) (dissenting).
Justice Stras’s views on the role of the judiciary arise from an appreciation of constitutional separation of powers. In State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), Justice Stras described in detail the strict separation of powers required by Minnesota’s Constitution and concluded that the district court abused its discretion by relying on inherent judicial authority to order relief beyond what was provided in the statute at issue.
Justice Stras’s objection to the district court order went beyond the fact that the court acted beyond its authority. Instead, Justice Stras pointed to the constitutional significance of judicial encroachment in an area where the legislature was authorized to act. Proper respect for the separation of powers is urgent as the Court addresses constitutional limitations on its own power as well as limitations on an administrative state that has undertaken the role of all three branches.
Justice Stras is an originalist and a textualist. Like the opinions by Justice Scalia, Justice Stras’s decisions are notable for a rigorous analysis of statutory and constitutional text that interprets the text as it was understood at the time of its adoption. In State v. Nelson, 842 N.W.2d 433 (Minn. 2014), Justice Stras rigorously analyzes the text of the statute text, citing multiple dictionaries. Justice Stras’s majority opinion credits the statute as written over what other judges viewed as the historical understanding and intent underlying the statute.
Perhaps the best example of Justice Stras’s originalist approach comes in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012). The case involved the question of whether a party seeking contractual attorney fees is entitled to a jury trial under Minnesota’s Constitution. Justice Stras first addressed the question whether a party would have been entitled to a jury based on the same theory of relief at the time Minnestoa’s Constitution was adopted and then assessed the plaintiff’s claim in light of similar theories. United Prairie Bank shows Justice Stras following Justice Scalia’s model by making the intellectual case for originalism and pushing his colleagues to apply the text of the Constitution as written.
UPDATE: A reader sends this information –
For a very good exposition of [Justice Lee's] views on due process, stare decisis, and originalism, see this decision, issued Tuesday:
In the Matter of the Adoption of K.A.S (Utah S. Ct. Dec. 6, 2016), Lee dissenting.
The dissent begins:
Parental-rights termination cases are heart-wrenching. They present problems of enormous consequence—of severance of one of the most cherished of all human bonds, with the safety and welfare of children hanging in the balance. This is a matter on which our sensitivity for justice is heightened. And for that reason I can appreciate a desire to find a way to secure the appointment of counsel in a case like this one. As a pure policy matter, I see significant upsides in assuring that a parent has the benefit of legal counsel before his legal rights are terminated.
That said, the issues before us are not policy questions. We are not legislators voting on a statute guaranteeing appointed counsel in parental-termination cases. We are judges faced with questions of law—under our law of preservation, and on matters of statutory and constitutional interpretation. And I find no basis in law for the majority’s conclusions.
Posted at 6:46 AM