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Trump SCOTUS Short-Lister Tom Lee: Five Things to Know

Dec. 20, 2016, 7:27 PM

Utah Supreme Court Associate Chief Justice Thomas Rex Lee might be an ideal choice for the vacant spot on the U.S. Supreme Court for those wanting a justice like the late Antonin Scalia.

Trump has said he’ll choose someone from his short list of 21 potential high court nominees, which includes Lee, to replace Scalia, who died unexpectedly Feb. 13.

A recent study named Lee as the short-lister who most resembles Scalia in his jurisprudence.

Lee’s brother, Sen. Mike Lee (R-Utah), opposed Trump’s election campaign and declined consideration after being placed on the short list.


Trump said he’s looking for a nominee who is “very much in the mold of” Scalia.

Lee tops the list in terms of “Scalia-ness” according to a study, Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court.

Researchers examined 15 of Trump’s potential nominees (describing the other six as unlikely choices), using criteria including the percentage of opinions showing Scalia’s originalist judicial philosophy and “percentage of opinions citing Scalia’s non-judicial writing.”

Lee ranked first overall. The percentage of Lee’s opinions that demonstrated originalism was far above that of the others, the study concluded.

The percentage of his opinions citing Scalia’s non-judicial writing was a close second to that of short-list favorite Judge William H. Pryor of the U.S. Court of Appeals for the Eleventh Circuit.

“A heavy dose of citations to Justice Scalia’s non-judicial writing reveals a judge who approaches the law as Justice Scalia did,” the study said.


Law runs in the Lee family.

Family ties are one reason Trump should consider nominating Thomas Lee, a Dec. 6 National Review story said.

Mike Lee — “a prominent conservative leader"— didn’t support Trump’s election campaign, and nominating the senator’s brother would “help unite Republicans following an acrimonious election,” the story said.

Thomas Lee’s father, Rex Lee, was a solicitor general for President Ronald Reagan and clerked for Supreme Court Justice Byron White.

Rex taught Thomas that oral arguments should be like “a conversation about an important topic with a friend — not just any friend, but one that is respected and looked up to,” Thomas wrote in a tribute to his father.

Thomas Lee clerked for Supreme Court Justice Clarence Thomas, and Mike clerked for Supreme Court Justice Samuel A. Alito Jr.— who once worked for Rex as an assistant solicitor general.


Lee would be the high court’s first Mormon justice.

Nominating a Mormon to the Supreme Court “might be a smart political move” for Trump, Jason P. Steed, an appellate attorney with Bell Nunnally & Martin LLP, Dallas, told Bloomberg BNA in November.

Trump could nominate Lee to “try to bring Mormons (who typically vote Republican but opposed Trump more than most other Republican constituencies) back into” the party fold, Steed said.

Before Lee began his legal career, his Mormon faith brought him into contact with now-Senate Minority Leader Harry Reid (D-Nev.), who is retiring in January.

Reid, who is also Mormon, provided religious guidance to Lee’s family, according to a 2011 BYU Magazine story.

Currently, there are five justices who are Catholic and three who are Jewish.


The Supreme Court will gain a scholar if Lee joins it.

He was a professor at Brigham Young University law school for more than a decade, where he still teaches part-time.

He’s taught a wide variety of subjects including civil procedure, copyrights, intellectual property law, trade secrets and trademarks, as well as a class about the high court.

He’s written at least 10 scholarly papers, covering topics including stare decisis, the False Claims Act, preliminary injunctions and the U.S. Constitution’s census clause.


Lee’s biggest scholarly influence may be in the field of corpus linguistics, which he sees as a useful tool in interpreting statutes and the U.S. Constitution.

It involves accessing “large bodies of real-world language to see how particular words or phrases are actually used in written or spoken English,” Lee explained in his partial concurrence in State v. Rasabout, 356 P.3d 1258 (Utah 2015).

Lee “pioneered the application of corpus linguistics to law,” John O. McGinnis, a law professor at Northwestern University law school, said in a November blog post.

Corpus linguistics can help judges determine the original meaning of the Constitution’s words and phrases, a recent Yale Law Journal article co-authored by Lee said.

“Context matters, and dictionaries (especially from the Founding Era) do not capture context and phrasal meanings,” the article said.

Similarly, where there is “linguistic ambiguity” in a statute, using corpus linguistics to interpret its terms is preferable to merely “relying on the limited capacities of the dictionary or our memory,” he said in Rasabout.

He proposed using corpus linguistics “on a systematic scale — by computer-aided searches of online databases.”

But his “thesis is not that corpus linguistics will resolve all problems of statutory interpretation,” Lee said at a 2015 presentation at Stanford Law School.

Rather, it’s that corpus linguistics is useful for “a narrow band of cases that seem to come down to the ordinary meaning of a particular word in a particular linguistic context, where we think that we can’t resolve this problem by looking to the dictionary.”

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