Sen. Ted Cruz (R-Texas) said Thursday that he raised concerns with President Trump in 2017 and 2018 over plans to nominate Neil Gorsuch and Brett Kavanaugh to the Supreme Court, foreshadowing criticisms that conservatives have had with Trump’s first two nominees.
But with the president’s third high court nominee -- Judge Amy Coney Barrett -- Cruz said he has made a study of her record and now feels very comfortable with Trump’s “exceptionally qualified” pick.
“It is too early to assess the tenures of Justices Gorsuch and Kavanaugh. These things are typically measured in matters of decades rather than just a couple of years. But I raised concerns with the president about both of them,” Cruz said in an interview about his new book, “One Vote Away: How a Single Supreme Court Seat Can Change History,” which hit No. 1 on Amazon’s best-seller list last week.
Cruz said that in both 2017 and 2018 he urged Trump to nominate Sen. Mike Lee (R-Utah) instead.
“Mike Lee has a proven record. He has stood and defended constitutional principles over and over and over again. And he’s paid the price for it. That has proven to be the most reliable predictor, a fidelity to the Constitution despite whatever social or public criticism that might take,” he said.
Conservatives feel snake bitten after some of the early decisions from Gorsuch and Kavanaugh. Sen. Josh Hawley (R-Mo.) has since insisted that Trump nominate someone with a record reflecting strong skepticism of Roe v. Wade, the landmark Supreme Court decision on abortion rights.
Conservatives lashed out at Gorsuch earlier this year when he authored the decision in a Bostock vs. Clayton Country, a case that led to workplace protections for LGBTQ workers.
Erick Erickson, a conservative radio host, tweeted after the Gorsuch decision: “All those evangelicals who sided with Trump in 2016 to protect them from cultural currents just found their excuse to stay home in 2020 thank[s] to Trump’s Supreme Court picks.”
Kavanaugh angered some conservatives last year when he joined liberal justices in ruling that iPhone users can sue Apple over App Store prices.
“I’ve been skeptical of Kavanaugh as a pick since Trump named him. This is another reason why,” conservative commentator Ben Shapiro tweeted at the time.
Cruz says that litmus tests aren’t necessary and argues in his new book that there are other means to determine whether a nominee will be a reliably conservative jurist, as he believes Barrett will be.
He cited former President George H. W. Bush’s decision to nominate David Souter to the Supreme Court over Fifth Circuit Court of Appeals Judge Edith Jones, who was the most conservative appellate court in the country at the time.
“He chose Souter because he would be a much easier confirmation precisely because he didn’t have a proven record. Indeed, he had only been the federal court of appeals for a matter of weeks at the time,” Cruz said.
It turned out to be “a disastrous decision,” he added.
Another example Cruz pointed to is former President George W. Bush’s decision to nominate John Roberts to the Supreme Court in 2005 instead of Fourth Circuit Court of Appeals Judge Michael Luttig, a stalwart conservative.
“Luttig would have been a confirmation battle, whereas Roberts was seen as a much easier confirmation. President George W. Bush picked Roberts and that has proven to be a mistake as well,” Cruz said.
Roberts has since turned out to be a swing justice who some court watchers compare to former Justice Sandra Day O’Connor. He enraged conservatives in 2012 with his decision in National Federation of Independent Business v. Sebelius that upheld the 2010 Affordable Care Act.
A major reason that George H.W. Bush and George W. Bush picked more moderate judges is because they didn’t want to expend too much political capital pushing their nominees through the Senate at a time when Democrats, who were still in the minority, had the power to filibuster Supreme Court picks.
Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate GOP conference changed those rules in 2017 using the so-called nuclear option to allow Gorsuch and future Supreme Court nominees to win confirmation with simple majority votes.
That has opened the way for president’s to pick more conservative and more liberal judges for the high court.
Cruz said, all things considered, he’s glad there’s no longer a 60-vote threshold for Supreme Court nominees, even though it was almost never applied in the past.
“I am glad, although theoretically there may have been a 60-vote threshold. Prior to Justice Gorsuch’s nomination, no Supreme Court nominee had been filibustered on a partisan basis,” he said.
Cruz did not recognize former Sen. John Kerry’s (D-Mass.) quixotic attempt to rally Democratic colleagues to filibuster Samuel Alito’s nomination to the Supreme Court in 2006 while attending an economic conference in Davos, Switzerland.
Cruz argues in his book that it’s important to nominate judges who have a record standing up to media criticism because social pressure in Washington has a tendency to pull justices leftward.
“All of the social pressure in Washington pulls justices to the left,” he said. “There’s only one direction that justices move and the reason is that when a justice votes with the left, the press lionizes them and the Washington social scene embraces them. And justices who want to be popular in Washington, I believe historically have made terrible justices.”
Cruz added: “I want a justice who has no desire to go to DC cocktail parties.”
The Texas senator said he feels confident about Trump’s latest nominee.
He called Barrett “an exceptionally qualified candidate” with “impeccable credentials.”
He also praised her calm demeanor, which he says reflects a judicial temperament that will serve her well on the bench, and in next week’s confirmation hearings.
Cruz expects Democrats will attempt what he called procedural “shenanigans” and vowed that Republicans on the Senate Judiciary Committee will do whatever is necessary to keep the nomination on track, with a final confirmation vote before Election Day.
He did not rule out possibly changing committee rules if Democrats boycott a vote on Barrett so as to deny Republicans a quorum and delay her confirmation.
Committee rules state that nine members of the panel, including two members of the minority, must be present to constitute a quorum for the purpose of transacting business.
“I support doing whatever is necessary to complete the task before us and confirm Judge Barrett and believe we will do so. If the Democrats engage in procedural shenanigans, which I think is quite likely, I believe the majority will do whatever is necessary to overcome those delay tactics,” he said.