A jurist's contribution to the law can't be boiled down to one case: Sen. Mike Lee

Sen. Mike Lee, R-Utah, is interviewed on "This Week."
9:27 | 09/27/20

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Transcript for A jurist's contribution to the law can't be boiled down to one case: Sen. Mike Lee
Senator Durbin, thank you for your time this morning. Let's get the Republican perspective from Mike Lee. Senator Lee, thank you. Let's pick up where senator Durbin left off. If the Democrats are successful in November, they may move to end the filibuster possibly expand the court, your response. I think that would be an unfortunate step. I think the filibuster is there for a good reason. The nine-member supreme court has been something we have had in place for a very long time. Something that we have relied on. That said, this is promise they've made. This is an expectation they've created with their own voters, if they choose to take that step, it will have been with the consent of voters who will have elected him. Which is one othe reasons that Democrats don't take the majority. You know, you talk about the filibusters, one of the reasons you may be able to get Barrett through is because there are no fillibusters on judges. That's right. That was an unfortunate step then, it had its natural consequences. I hope we can contain the damage so it doesn't go into the legislative calendar. You say you hope that you're successful on November 3rd, we just showed that poll, most Americans believe whoever wins on November 3rd should select the next supreme court justice, worried at all that if you continue to push this through there might be a backlash at the election. Not on that point. Look, president Donald Trump campaigned in 2016, he's campaigning again this time, promising to appoint judges to federal courts and justices to the U.S. Supreme court, who are originalists, interpret the constitution on what it says, rather than on basis that they might wish it said. He's fulfilling that promise. I think the American people respect somebody who's willing to stand behind his campaign promises. What does the confirmation of judge Barrett, justice Barrett, means for roe V. Wade? You know, only time can tell what will happen to any one precedent. Although, I would point out here, George, any time someone is looking at overruling a precedent, it's a lot more complicated than people might think and in any event you can't look at the confirmation of a supreme court justice and boil down that jurist, contribution to the law, past and future to what they might do with a single case. This judge has an incredible background, this is a judge who will bring her expertise to the table. And it will be brought to bear on a whole wide variety of scenarios just as justice Ginsburg's expertise was brought to bear in her cases. Including health care. Senator Durbin and Democrats are united concerned if judge Barrett is confirmed, the ACA and its pro texts for pre-existing conditions will go down as well, valid concerns? Look, the patient protection and affordable care act was I believe unconstitutional when it was enacted, unconstitutional when it was ligated in 2012. Unconstitutional when chief justice Roberts, writing for a narrow majority, re-wrote the affordable care act in two critical ways. In order to render an otherwise inevitably unconstitutional law constitutional. It shouldn't tarnish judge Barrett in this. Her job is to figure out whether it's unconstitutional or not. I don't believe it is. John rockets re-wrote twice nortd to make it appear constitutional which it is not. You got a very forthright opinion on the affordable care act, lot of your colleagues are concerned that that forthright opinion is going to cost you on November 3rd? Okay, well, look, judge Barrett, we're talking about judge Barrett here and constitutionality, judge Barrett would look at this on the basis of constitutionality. Now, I don't purport to speak for what judge Barrett might say or might speak. You ked me for what I think on the constitutionality on affordable care act. I don't believe it is. We also heard senator Durbin talk about whether or not she should sit in judgment of this electionhe believes that she should recuse herself from any election-related cases if indeed she's confirmed. Should she recuse? Judges and supreme court justices have a well-defined set of rules that helps guide their determination in making recusal decisions. I'm not going to purport to speak of what she ought to do with her recusal. I have every confidence that she'll make the right decision. On the face, the president is talking about a 4-4 court from his perspective saying, the election is going to be rigged, he says he needs a supreme court justice in there to create a majority and by implication support his position, doesn't that create a series of conflicts on its face? George, your use of the words "By implication" there does more lifting than those words can bear, more than logic and reason and the record can bear. It's -- He's repeatedly talked about a 4-4 court. Yeah, yeah, the dangers of a 4-4 court are significant. Dangers that were outlined by Democrats in 2016 when they wanted us to confirm judge Garland. And the Republicans like you said no problem at all. Well, one can get around it. We didn't say it was no problem at all. We said that there are procedures whereby a 4-4 split can result in the affirmance of a lower court decisions. The risks are well-known, not wrong for the president to point out that it might be a good thing to have a court that's fully ompanelled. And that's not an untenable position to make. So you have no problem with the idea that a president nominating someone 38 days before an election would then have that person set in judgment of the very election in play? Let me put it this way, George, judge Barrett once confirmed to the supreme court of the United States will be a supreme court justice, no less than a justice Gorsuch, or Breyer, Kagan or Sotomayor, she'll be a justice on full par on them. Whether she recuses in it's up to her and consultation with her colleagues and the rules at play. The president talked about mail-in voting, increasing the chances of a rigged election, he's calling it a sign that the election could be a hoax. Utah your state has had no significant problems with universal mail-in voting, here's what the FBI director Chris WRAY had to say this week on that subject. We have not seen historically any kind of coordinated national voter fraud effort in an election, whether by mail or otherwise. Isn't director WRAY right? I think it has to be a decision that's made by each state. And we have used it in Utah to my knowledge, there haven't been significant problems with it in Utah. But look, George, the fact that director WRAY says he hasn't seen historically evidence that it's been manipulated it's different whether it can be manipulated going forward. The president's concern is a legitimate one, I don't think we ought to dismiss it. Based on what evidence? Based on the fact that in any election, you go through a whole lot of procedures, or you should go through a whole lot of routine procedures, to make sure that there's not tampering that people might cheat. You want to make sure that you got in place mechanisms in place to deter that, to detect that and prevent that. And insofar as you're changing procedures that have been in place for a long time, you ought to be extra vigilant. I don't think that's unreasonable for the president to suggest. But finally, to be clear, problems in your state with mail-in voting? No, it's worked fine in Utah. It's important to remember, whether we're talking about mail-in ballots or any other form of potential election fraud, the well you can't prove that's happened on a widespread basis in the past is very different from saying there's no reason to worry about it ever. These are significant things when you're shifting over an entire country is moving toward mail-in balloting all at once? There's legitimate reason for concern. We shouldn't dismiss that. Senator Lee, thanks for your time this morning.

This transcript has been automatically generated and may not be 100% accurate.

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