February 17, 2016
Ted Cruz was first out of the gate among the Republican presidential contenders insisting that President Obama should keep his hands off the nomination of Antonin Scalia’s successor. "Justice Scalia was an American hero," Cruz tweeted, when the news of Scalia’s death was an hour old. "We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement."
But who can fill Scalia's shoes to Cruz's satisfaction? The first name to come to mind—my mind, at least, if no one else's—was Cruz himself. For as John Kass wrote last fall, "Ted Cruz is a smart man, hated of course by liberal newspeople, and I've always thought he might best serve his nation on the Supreme Court." Like Scalia—and Kass, for that manner—Cruz has a way of insulting the people he works with that would place him firmly in the Scalia tradition.
Consider Scalia's dissent to last year’s Supreme Court ruling that allowed gay marriage. Disparaging the court that made the call as a "select, patrician, highly unrepresentative panel of nine," Scalia sneered at Anthony Kennedy's majority opinion for its "straining-to-be-memorable passages" and "showy profundities," and parts that were simply "profoundly incoherent." If he'd written Kennedy's opening, declared Scalia, "I would hide my head in a bag."
Cruz can't match Scalia's rhetorical flourishes, but he can more than keep up in making clear his contempt. For instance, last year the Texas senator called Mitch McConnell, his own majority leader, a liar. "Mr. Cruz is so unpopular," the New York Times observed, "that at one point not a single Republican senator would support his demand for a roll-call vote, known as a sufficient second, leaving Mr. Cruz standing on the Senate floor like a man with bird flu, everyone scattering to avoid him."
Scalia would have been a more influential justice, pundits have observed, if he'd been more political, forming coalitions and seeking middle ground. Instead, he blithely went his own way, letting the chips fall where they may. Like many people with strong opinions, he seemed to prefer bright opponents to mediocre allies: he's famous for his friendship with liberal Justice Ruth Bader Ginsburg, and David Axelrod tells us he proposed Elena Kagan for the Court long before Obama nominated her. Just as headstrong but without the charm, Cruz has no apparent gift for friendship with anybody, friend or foe. In the tiny Supreme Court, where it's impossible to simply ignore someone you despise, Cruz might have a galvanizing effect. By turning everyone against him, he could usher in a new progressive era enshrined by a series of 8 to 1 decisions in favor of whatever he doesn't like.
Even so, President Obama isn't likely to nominate Cruz. But his primary opponents have just been handed a golden opportunity to stick it to him. I can easily imagine Donald Trump saying this: “I like Ted Cruz. Ted Cruz is a serious, thoughtful guy. He has no business running for president because he couldn't manage a snow cone stand. But I'll say this. When I'm president and I fill this Supreme Court opening I'm going to be looking only at top people—the very top people—and Ted Cruz will be right up there at the top of my list."
Cruz won't believe a word of it, and neither will anyone else, but what's he going to say? There's been way too much common insult in this Republican race and too little advanced derision. It’s time to pick up the pace.
In Nine Trips to Supreme Court, Ted Cruz Saw Mixed Results
Ted Cruz with Chief Justice William H. Rehnquist, whom Mr. Cruz clerked for in 1996.
by Aman Batheja | Jan. 24, 2016
Before he was a U.S. senator or a candidate for president, Ted Cruz argued before the U.S. Supreme Court nine times, putting the Texas Republican in an exclusive club.
“Most lawyers in America will never argue in front of the Supreme Court, much less do it nine times,” said Paul Collins, director of legal studies at the University of Massachusetts Amherst.
For all but one of his nine cases before the nation’s highest court, Cruz represented the state of Texas as its solicitor general. It was a role that allowed him to challenge the legal limits of hot-button issues such as the Voting Rights Act and states’ rights.
Over nine trips to the Supreme Court, Cruz clearly lost four cases and won two. The other three rulings were less clear-cut.
Click here to scroll down and take a closer look at each case and hear audio clips from the arguments.
Five cases involved the death penalty. One dealt with Texas’ intense efforts to keep a calculator thief behind bars. Another was essentially a patent fight over a deep fat fryer.
“Arguing before the Supreme Court is not like giving a speech,” Collins said. “They talk for about a minute or two and then the justices pepper them with questions, so you really have to be sharp on your toes.”
Cruz’s most well-known case, involving convicted murderer José Medellín, reached the Supreme Court twice. Cruz ultimately won, allowing the state to execute Medellín despite an order from an international court and the urging of President George W. Bush to hold off so Medellín could receive a new hearing.
Just as he did during his successful U.S. Senate campaign in 2012, Cruz is citing the case on the presidential campaign trail to frame himself as a seasoned fighter for conservative causes.
“The World Court ordered a stay of execution for an illegal immigrant convicted of murder,” a narrator says in an ad Cruz’s campaign released Thursday on the Medellín case. “Standing in their way was Ted Cruz.”
Cruz also brought up his experience at the Supreme Court during this month's Republican presidential debate, in which opponent Donald Trump warned that Canadian-born Cruz may not be eligible to be president.
“I mean, you have great constitutional lawyers that say you can’t run,” Trump said.
The audience cheered Cruz's response.
"I've spent my entire life defending the Constitution before the U.S. Supreme Court," Cruz said. "And I'll tell you, I'm not going to be taking legal advice from Donald Trump."
As Cruz told The Texas Tribune in an interview in 2012, he was working at the Federal Trade Commission in 2002 when he received a call “out of the blue” to interview for the solicitor general position. Cruz had gained a reputation as a strong appellate lawyer before joining the Bush campaign. He had also clerked for Chief Justice William Rehnquist after graduating from Harvard Law School.
Cruz recalled that Greg Abbott, the new attorney general, originally asked him to commit to stay on for two and a half years.
“Ultimately I ended up staying five and a half years because the opportunity to fight for conservative principles and lead some of the biggest battles in the country defending the Constitution was just extraordinary,” Cruz said.
Below is a closer look at the nine cases Cruz argued before the U.S. Supreme Court. Audio excerpts of the arguments were downloaded from Oyez, a free law project at the IIT Chicago-Kent College of Law.
About Senator Cruz
In 2012, Ted Cruz was elected as the 34th U.S. Senator from Texas. A passionate fighter for limited government, economic growth, and the Constitution, Ted won a decisive victory in both the Republican primary and the general election, despite having never before been elected to office.
Propelled by tens of thousands of grassroots activists across Texas, Ted’s election has been described by the Washington Post as “the biggest upset of 2012 . . . a true grassroots victory against very long odds.”
National Review has described Ted as “a great Reaganite hope,” columnist George Will has described him as “as good as it gets,” and the National Federation of Independent Business characterized his election as “critical to the small-business owners in [Texas, and], also to protecting free enterprise across America.”
Ted’s calling to public service is inspired largely by his first-hand observation of the pursuit of freedom and opportunity in America. Ted’s mother was born in Delaware to an Irish and Italian working-class family; she became the first in her family to go to college, graduated from Rice University with a degree in mathematics, and became a pioneering computer programmer in the 1950s.
Ted’s father was born in Cuba, fought in the revolution, and was imprisoned and tortured. He fled to Texas in 1957, penniless and not speaking a word of English. He washed dishes for 50 cents an hour, paid his way through the University of Texas, and started a small business in the oil and gas industry. Today, Ted’s father is a pastor in Dallas.
In the Senate, Ted serves on the Committee on Commerce, Science, and Transportation; the Committee on Armed Services; the Committee on the Judiciary; the Joint Economic Committee; and the Committee on Rules and Administration.
Before being elected, Ted received national acclaim as the Solicitor General of Texas, the State's chief lawyer before the U.S. Supreme Court. Serving under Attorney General Greg Abbott, Ted was the nation’s youngest Solicitor General, the longest serving Solicitor General in Texas, and the first Hispanic Solicitor General of Texas.
In private practice in Houston, Ted spent five years as a partner at one of the nation’s largest law firms, where he led the firm’s U.S. Supreme Court and national Appellate Litigation practice. Ted has authored more than 80 U.S. Supreme Court briefs and argued 43 oral arguments, including nine before the U.S. Supreme Court. During Ted’s service as Solicitor General, Texas achieved an unprecedented series of landmark national victories, including successfully defending:
• U.S. sovereignty against the UN and the World Court in Medellin v. Texas;
• The Second Amendment right to keep and bear arms;
• The constitutionality of the Texas Ten Commandments monument;
• The constitutionality of the words “under God” in the Pledge of Allegiance;
• The constitutionality of the Texas Sexually Violent Predator Civil Commitment law; and
• The Texas congressional redistricting plan.
The National Law Journal has called Ted “a key voice” to whom “the [U.S. Supreme Court] Justices listen.” Ted has been named by American Lawyer magazine as one of the 50 Best Litigators under 45 in America, by the National Law Journal as one of the 50 Most Influential Minority Lawyers in America, and by Texas Lawyer as one of the 25 Greatest Texas Lawyers of the Past Quarter Century.
From 2004-09, he taught U.S. Supreme Court Litigation as an Adjunct Professor of Law at the University of Texas School of Law.
Prior to becoming Solicitor General, he served as the Director of the Office of Policy Planning at the Federal Trade Commission, as Associate Deputy Attorney General at the U.S. Department of Justice, and as Domestic Policy Advisor on the 2000 Bush-Cheney campaign.
Ted graduated with honors from Princeton University and with high honors from Harvard Law School. He served as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court. He was the first Hispanic ever to clerk for the Chief Justice of the United States.
Ted and his wife Heidi live in his hometown of Houston, Texas, with their two young daughters Caroline and Catherine.