Ted Cruz says Republicans have “an abysmal record” when it comes to picking Supreme Court justices, and it is something the Texas senator promises to rectify if he's elected president.
Cruz, who argued cases before the Supreme Court as the solicitor general of his state and has taught law school classes on the art of presenting cases to the high court, told Bloomberg Politics in an exclusive interview in Iowa on Monday that his party has a knack for picking eventual heretics who side with liberals on divisive issues.
As examples, he cited Chief Justice John Roberts, an appointee of President George W. Bush, who rejected a challenge to President Barack Obama's health care law in 2012, and Justice Anthony Kennedy, a Ronald Reagan appointee, who voted in 2015 to make same-sex marriage a constitutional right. Both cases were decided 5 to 4.
“Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative,” Cruz said.
The Supreme Court is poised for vacancies in the years ahead. Come Election Day, three out of nine justices (Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy) will be over 80 years old. A fourth, Stephen Breyer, will be 78. The average Supreme Court retirement age is 78.7, according to a 2006 Harvard study. The next president could end up nominating several justices, making the high court stakes enormous in the 2016 election, particularly given the now familiar 5-to-4 split on monumental issues like voting rights, campaign finance, gun rights, and the role of religion in public life.
‘We bat about .500’
While the stark divisions between the types of justices preferred by modern Democratic and Republican presidents are well-known, Cruz argued that within the GOP, some candidates—namely him—would fight for more conservative nominees than others.
His goal? To match Democrats' “nearly perfect record” of picking justices who vote reliably with their movement. “The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.”
As examples he cited Justices William Brennan, Earl Warren, John Paul Stevens, David Souter, and Harry Blackmun. All were appointed by Republican presidents and sided with liberal justices on some important issues; Warren and Stevens went on to become leaders of the court's liberal wing.
Driving east in his car after a campaign stop near Iowa City, the accomplished Supreme Court litigator and former Texas solicitor general said he'd only settle for “rock-ribbed conservatives” who have “a long paper trail as principled conservative jurists.” His ideal contender would be someone who has refused to bow to pressure, rather than a “stealth candidate” without a demonstrable conservative record.
Cruz cited Souter and Roberts (whom Cruz praised at the time he was appointed, an appointment Cruz has since called a mistake) as examples of “stealth” Republican-selected nominees without a proven conservative record. If more conservative judges like Edith Jones and Mike Luttig were picked, he argued, Obamacare would have been struck down in 2012 and states wouldn't have lost their authority to ban same-sex marriage. (Both cases were decided by a 5-to-4 margin.)
Presidents Bush took the “easy way out” by picking Souter and Roberts, Cruz said. “They didn't want to spend the political capital trying to confirm a proven conservative.” As examples of principled conservative justices he'd model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.
In the interview, Cruz revealed his aggressive brand of legal conservatism. Yet when it comes to one century-old monumental decision regarding the scope of government power, Cruz showed himself to be not quite as radical as some on the right.
Unlike some prominent conservatives like syndicated columnist George Will and Texas Supreme Court Justice Don Willett, Cruz said he believes the landmark 1905 ruling in Lochner v. New York was wrongly decided. The decision, which ruled unconstitutional a state law establishing maximum working hours for bakers, led to the “Lochner era,” a period lasting more than three decades in which progressive economic laws such as a minimum wage were invalidated as a breach of the right to contract freely under the 14th Amendment. The Lochner decision was eventually overturned in 1937.
“I am not a supporter of Lochner,” Cruz said. “I believe that minimum wage laws harm the most vulnerable in our society, that they are bad policy. As a legislator, I would vote against those laws. But I do not believe it is the role of the courts to strike them down. The states have the constitutional authority to impose foolish laws ... So I disagree with some conservatives who argue, à la Lochner, that the courts should impose conservative policy.”
On Lochner, Cruz is aligned with Roberts (as well as former judge Robert Bork), who kicked off a debate about jurisprudential doctrine by criticizing the ruling as “judicial policymaking” in a dissent earlier this year.
A second landmark case, Wickard v. Filburn in 1942—which established broad federal authority to regulate economic activity under the Constitution's Commerce Clause, and has served as the linchpin of the modern regulatory state from environmental to public-health laws—has in recent years faced renewed conservative ire for purportedly stretching the meaning of Constitution. Cruz shares those conservative concerns, saying Wickard wasn't correctly decided.
“No,” he said. “It was not.”
Asked if Social Security is unconstitutional, as some of Cruz's fellow Texans including ex-Governor Rick Perry and ex-Representative Ron Paul have suggested, Cruz wouldn't bite. “I am a strong defender of Social Security,” he said, steering into a discussion of his policy proposal to trim Social Security benefits “for younger workers.”
Before ending the interview, Bloomberg Politics asked Cruz if he'd accept a hypothetical nomination to the Supreme Court by a future president.
He paused for three seconds, revealing a sense of intrigue behind his smile.
“One step at a time,” he said. “Time will tell if I'm in a position to assess that offer.”