I was joined this morning by Judiciary Committee member Mike Lee of Utah:
HH: Joined now by Senator Mike Lee of the great state of Utah. He is a terrific friend of the show, and he is also a prolific writer and scholar and former Constitutional Law expert and litigator and Judge Alito clerk, Justice Alito clerk on the United States Supreme Court. Now, he’s the author of a brand new book, Written Out of History. I’m going to talk both the present and the past. But Senator Lee, always a pleasure, good morning to you, Senator.
ML: Good morning, Hugh, good to be with you as always.
HH: You know, I haven’t read it, yet. Going on vacation with me, but I’m braced, because are you really trying to rehab Aaron Burr here?
ML: Well, I’m trying to tell the rest of the Aaron Burr story. Right now, all that anyone knows about Aaron Burr, or all that anyone talks about, at least, is that he’s the guy who shot Alexander Hamilton. I want people to know that there’s more to the story than that. He’s a much more colorful, interesting character than that. And he himself almost lost his life because of the political aggression of Thomas Jefferson.
HH: Well, he was, he was tried for treason with the Chief Justice, John Marshall, sitting as justice in the dock, and it was really, it’s really extraordinary. But I know there are a lot of anti-federalists I admire, because I do teach the anti-federalists when I teach Con Law. And I think it’s important to rediscover their legacy for the reason that the most compelling arguments about the limited nature of our federal government come from the anti-federalists and from the federalists – Hamilton, Madison, saying don’t worry, not to worry. That’s basically the Federalist Papers, is don’t worry about those anti-federalists. So why is that important for you to get out there now?
ML: Well, because a lot of the warnings of the anti-federalists, including the first anti-federalist, Luther Martin, who I also showcase in the book, are prescient. And they’re becoming more and more evident as ahead of their time every single day. The reason is that a lot of their warnings have been coming to fruition just in the last few decades. And if we take the time to understand what they were concerned about, I think we’ll have a better understanding of the risks associated with big government, and in particular, the risks associated with the consolidation of power at the national level.
HH: That is exactly right. That’s why I’m looking forward to this. Who are the anti-federalists that you hold out, because of course, the greatest of them is Patrick Henry. But who are, in my opinion, there are different people who argue about this, but who do you hold up as, and let’s put Burr aside, he’s a special case because of the volcanic nature of his ambition, but who else do you profile in this?
ML: I also talk about Luther Martin, and I talk about George Mason. I talk about Mercy Otis Warren, and I talk about Elbridge Gerry. You know, the interesting thing about Elbridge Gerry is that of the seven signers of the Declaration of Independence who were also delegates to the Constitutional Convention, Elbridge Gerry was the only one of that original group who declined ultimately to sign the Constitution.
HH: And he was adamant about it. But how about an Iroquois chief? I can’t even figure out how that argument is made?
ML: Canasatego was an Iroquois Indian chief who taught Benjamin Franklin about federalism, taught him the way that the Iroquois nations came together and governed for limited purposes as a nation, defended themselves as a nation, and still left governing decisions on the whole to the respective tribes. This system worked well for the Iroquois. It didn’t create a utopia, to be sure, but it certainly did create a lasting alliance, one that’s lasted many centuries, and one that kept the Iroquois safe. He taught these principles to Benjamin Franklin. Benjamin Franklin, in turn, shared them with other American patriots. They made their way, ultimately, into the Articles of Confederation and later into the Constitution. And yet, Canasatega was rarely heard of, notwithstanding the fact that he made this important contribution to our Constitutional system.
HH: Well, I can’t wait to read Written Out of History, because for reasons like that, stories that, I’ve been teaching Con Law and the framing for 22 years, and I still had never heard that story before, so I’m looking forward to it. Mike Lee, it’s great that you’re here, Senator, because the Constitution rarely comes up on the Sunday talk shows, unfortunately. It did come up on Meet the Press two days ago when I was a panelist, because we were talking about the decision by the President to withdraw from the Paris Accord. And this exchange occurred between former Obama spokeswoman Stephanie Cutter and myself, which I thought you’d find interesting.
HH: When President Obama chose not to go to the Senate, it was an admission against interest.
SC: To Hugh’s comment that, you mentioned that Kerry was dismissive to rule of law conservatives. Well, there are a lot of rule of law conservatives who didn’t want to get out of the Paris Agreement. You’re making a process argument. You don’t like the way we got into it, so you’re taking us out of it. That argument doesn’t hold up, so why penalize the country…
HH: Stephanie, the Constitution is never a process argument.
SC: …even if you don’t like, even if you don’t…
HH: The Constitution is a fundamental deal.
SC: …but Hugh…
HH: So Mike Lee, the Constitution is not a process argument ever.
ML: Well, I think I disagree with every single syllable she uttered.
ML: Every vowel, every consonant. That is one of the more absurd arguments I’ve ever heard of. And by the way, did she ever bother to mention the supposed rule of law conservatives who didn’t want us to get out of the Paris Accord?
ML: I would love to know who they are.
HH: I would, too, because (laughing) you’re, we’re never going to find them. We’re going to need Carmen Sandiego to find them, Senator Lee. Not going to find them.
ML: And to dismiss the Constitution as a “process argument”, I mean, it at once manages to prove too much and too little. In a sense, the Constitution is all about process, and that process is bound up with substance. And so that doesn’t make it an irrelevant concern to the extent that it’s talking about processes that Barack Obama deliberately sidestepped. I mean, it’s almost an admission on her part that President Obama didn’t do what he was supposed to do, didn’t do what one needs to do in order to bind the United States to an international agreement.
HH: Earlier in the program, Chuck Todd had used the word treaty, and asked why John Kerry hadn’t supported sending it to the Senate. And Senator Kerry, now former Secretary of State Kerry, candidly admitted it didn’t have the votes. You know, that’s the beginning and the end of the argument for me. And the Montreal protocol on a similar subject matter was submitted to the Senate by George H.W. Bush and received 83 votes ratifying it, none in opposition. That’s how you do rule of law treaty making, Senator Lee. I’m sure you agree with me on this, and I’m sure you know why the framers insisted on such a high safeguard against abdications of our sovereignty to international treaty.
ML: Well, of course, because once a treaty is ratified, it becomes law of the land. And it does, in fact, bind us to an international set of rules. And in order for the United States to enter into something like that, we need that step. We need that two-thirds supermajority ratification step. Without it, we have no business getting into this, which is part of what makes my head explode. Every time I hear these progressives talk about how we somehow have damaged the credibility of the United States by getting out of it, we were never fully in it.
ML: We never ratified it in the first place.
ML: And to suggest otherwise on their part is irresponsible.
HH: Well, it is hard to get anyone in media to slow down long enough to talk about first principles and the Constitution. And a lot of that comes from the fact, Senator Lee, they’re just not equipped to do so. And there is a civics gap in the media that is immense. And if it didn’t happen in the last eight years, they don’t believe it matters, and so I compliment you on Written Out of History. It’s part of the ongoing effort to reclaim, reorganize and restore the importance of Constitutional principles. But sometimes, you just must wonder when you look across the aisle and you sit in the Judiciary Committee some of the arguments that come out of your colleagues’ mouths.
ML: Yes, some of the arguments that come out of my colleagues’ mouths on the other side of the aisle, some of the arguments that don’t come out of the mouths of my colleagues from both sides of the aisle. There is, in fact, a civics gap, and it’s bound up inextricably with an historical gap. We have lost some of the stories that remind us of what it is to be an American, and what it is that makes our country different, and how it is that we have fostered the development of the greatest civilization the world has ever known. I’m trying to close that gap, and I think my book, Written Out of History, goes a long way toward doing that. People have to know the stories.
HH: I agree with you. Story, history has got story written into it for a reason. Senator Lee, Written Out of History is great. I want to talk to you about the Judiciary Committee. President Trump has got 21 Circuit Court vacancies. We have had, confirmed one Circuit Court judge in the 6th Circuit. We have five other nominees and 15 vacancies. Where are the nominees for lifetime appointments to the most critical job other than the Supreme Court in the judiciary?
ML: Well, we’ve got to get those moving forward. There’s no question about it. A lot of these decisions have got to be made, and then we’ve got to figure out a way to move them forward once they’re nominated. I look forward to getting them through. These are very important. As you know, Hugh, most of the cases that move through the federal judiciary don’t ever make it past the Circuit Court level, which means if there is going to be an appeal, most likely the Circuit
Court will be, in effect, the court of last resort, in effect, the Supreme Court for those cases. It makes it all the more important for us to get the right people in there and to get them confirmed.
HH: I am an opponent of the blue slip, Senator Lee. I’ve written about it in the Washington Post. I was cheered to see Senator Grassley indicate the blue slip is under pressure. What is your, I mean, it’s not in the Constitution. In fact, it undermines the Constitutional argument that the Senate as a whole ought to provide advice and consent on nominees. If it can get a majority, it ought to be in committee and confirmed. I’m not at all, it’s not inconsistent with supporting Leader McConnell’s no hearing/no vote strategy last year. But what about blue slips? Do you think they ought to be burned up?
ML: Well, it’s an interesting point. You’re exactly right. There is nothing in the Senate rules, nothing certainly in the Constitution that requires it. There is some history and tradition behind it. My understanding is that the historical treatment that it’s received has been somewhat different with Circuit Courts than with district courts. So that’s one question we’ve got to look at. The other question that has to be examined is the extent to which it is being, or will be abused during this administration by people across the other side of the aisle. One of the more compelling arguments that I’ve heard by those who are opposed to the blue slips at this point is to say in the post-nuclear Senate, meaning after the Democrats went nuclear in November, 2013, it is no longer the case that 41 Senators can hold up a nominee. If 41 Senators can’t hold up a nominee, why would you allow one to not?
ML: That is a question that is being looked at closely within the Committee.
HH: And you’re a Constitutional scholar, and you’ve written Written Out of History. You know that the anti-federalists would have had a collective heart attack at the idea of one Senator controlling the 9th Circuit. And you know, it’s not, it simply has no predicate in any understanding of limited government or what the Senate’s role was supposed to be. I know it’s grown up, but I know Senators like their perks. But is there an argument for having at least a hearing to educate the American people, because I think they would all be disgusted with this practice.
ML: Yes, I think there is an argument to that. Now on this issue, this is ultimately a matter that contemplates a judgment call on the part of the committee chairman. And I’ve got full confidence in Chairman Grassley to look carefully at this and to decide whether or when to do a hearing on it specifically, and what decisions, if any, need to be made.
HH: And do you have full confidence in the White House getting you some nominees in a hurry on the 15 vacancies?
ML: Yes. I know they’re working on those, and I have great confidence that they’re going to come up with some very good names.
HH: Well, I hope Justice Willett’s on it. Thank you, Mike Lee, always a pleasure, Senator. Written Out of History, the brand new book, I just tweeted it out. I hope you all go and get it, America, give it to your kids, read it for yourself.
End of interview.