Saving ‘The List’ Trumps Getting Cruz on the Court

Sen. Ted Cruz, R-Texas, (R) and Sen. Lindsey Graham, R-S.C., hold a news conference about military assistance to Israel at the U.S. Capitol September 20, 2016 in Washington, D.C.

By John Murdock Published on November 13, 2016

South Carolina Senator and short-lived presidential candidate Lindsey Graham recently suggested that President-elect Donald Trump fill the late Justice Antonin Scalia’s seat with Texas Senator Ted Cruz. The idea is beginning to resonate on the right. But it would be the wrong thing to do.

The case for a Justice Cruz is rather straightforward. Like a lot of his colleagues, Senator Graham has never been a Cruz fan. He famously quipped during the primary campaign that “if you killed Ted Cruz on the floor of the Senate, and the trial was in the Senate, nobody would convict you.” But Graham, himself an attorney with a 33 year career in the Air Force Judge Advocate General Corps, knows that the former Texas Solicitor General possesses a great legal mind. Even the liberal Harvard Law professor Alan Dershowitz readily acknowledged that Cruz was one of his best students.

Politically, President Trump appointing his fiercest primary rival to the Court could also go a long way towards uniting the GOP and healing lingering wounds from a brutal campaign. Cruz’s verbose and bombastic style has often been a rough fit for the clubby Senate, but Cruz could fill the shoes of the famously talkative (and at times caustic) Scalia well.

Democrats, whose expectations of control were dashed, are now reduced to a possible, if risky, filibuster as their only means to block the next nominee. Invoking it might lead to a “nuclear option” that takes out the judicial filibuster entirely, though. Given those high stakes, Senate Democrats might welcome the chance to rid their chamber of the festering boil to liberalism that is Senator Cruz.

I suspect that a part of Ted Cruz himself is supportive of the idea. He has yet to do anything to tamp down the speculation, and one gets the sense from watching him over the years that a young Ted spent roughly the same amount of time fantasizing about being on the Supreme Court as he did about being President. Justice Cruz might well be the one thing that could unite all of Washington.

So What’s the Problem?

So, what’s the problem? The problem is the list. And it is a good problem to have. If Trump had lost, I was prepared to argue that his list of potential Supreme Court nominees was one political innovation that voters should demand from future candidates going forward. (And I would demand it in the primaries, too, not just the general election.) Now, having won, our first demand should be that he stick to it. And if Trump sticks to it, then the idea might stick around beyond him, and that would be a good thing.

From Nixon’s Justice Blackmun (author of Roe v. Wade) to Reagan’s O’Connor and Kennedy and the first Bush’s Souter, Republican candidates have too often promised us justices who would not “legislate from the bench” but — sometimes with an assist from Democrats who filibustered or “Borked” good nominees — delivered something very different in the White House. A list of real people who can be assessed is a major upgrade from mere platitudes.

Without a public list, even the best intentioned can fall into bad decisions when the need to nominate comes, as it often does, seemingly out of nowhere. George W. Bush’s surprise nomination of his White House Counsel Harriet Miers, a decent and honorable woman but an untested jurist, is a case in point. A conservative revolt at this unnecessary roll of the dice eventually led Bush to backtrack and nominate Samuel Alito. Alito proved to be a solid choice, but who wants to go through that again?

Trump drew up his list in an effort to assure wary religious conservatives and others who might have left for other options that he was worth betting on despite his flaws. It was a good list and a major reason that many values voters held their noses and joined with Trump’s more enthusiastic, if less religious, supporters to form an unlikely winning coalition.

If not for the odd optics of including one that Trump had repeatedly labeled “Lying Ted,” Cruz would have been a fine addition back then. Nevertheless, treating the list as a mere suggestion box now is a bad idea. Cruz himself knew this when he leveraged his endorsement to exact Trump’s explicit commitment to select only from his publicly declared ledger. “This commitment matters,” noted Cruz at the time, “and it provides a serious reason for voters to choose to support Trump.” It still matters.

Senator Cruz makes the best case against Justice Ted Cruz. If Trump were to waver from his list for the Scalia seat, even for a defensible choice like Cruz, the odds go up enormously that he would waver come round two. With the nepotism prone Trump having a pro-choice sister sitting on the federal appellate bench, this is not the time to tear up the list. Nor will it ever be the time. If we are lucky, the Trump List is one huge idea that will outlive his time in the White House.

 

John Murdock is an attorney who worked for over a decade in Washington, D.C. and is now a professor at the Handong International Law School, a Christian institution in South Korea. His writings can be found at johnmurdock.org.

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  • Hugh Manzee

    Graham just does not want to sit next to Cruz for another four years.

  • Hmmm…

    The list will be around for the succeeding nominations. It is assured there will be at least one other vacancy to fill, I suppose not guaranteed in four years, but entirely possible. A good idea endures. A variation in the list for a good cause, with a similarly aligned character, is not ruinous to it. What about term limits for the Supreme Court? What can be done to keep them from legislating from the Court? These are some very serious considerations. A legalistic approach to a previously tendered list does not enhance its concept. The idea is to set out a candidate with certain criteria. I like the idea of Mr. Cruz shaking up the Court. I hope he is placed next to dear Justice Ginsburg. It would do them both a world of good.

  • Gary

    Given Trump’s endorsement of same-sex marriage on 60 Minutes last night, Trump’s promise to appoint judges to the court who will go by what is written in the US Constitution appears to be nothing more than campaign hot air.

    • Michael Gore

      Exactly where in the primaries or in the presidential campaign did you get the impression that Trump was going to be a champion for traditional marriage? He has never held that position. What matters are what the beliefs and practices will be for all of the positions that he fills, such as Supreme Court, Department of Justice, and other un-elected positions he will be filling.
      Trump was never going to be the savior of traditional Christian values, he’s just the better of the two options we had. However if he sticks to his promise for judicial nominees (one of the promises that gained him Christian support on the right), then we will end up with nominees that are not going to create new “constitutional rights” out of thin air, as has been done to justify the Obergefell decision.

      • Gary

        Trump has made it clear that he is not looking for a Supreme Court nominee who disagrees with the majority decision in Obergfell. Expect Trump’s court nominees to be on the order of Souter and Kennedy. Had I known that is what Trump had in mind, I would not have voted for him.

        • Michael Gore

          I don’t know where he made that clear, maybe you could give a source, but if that was true he would have to throw out the entire list that he ran on the premise of. I don’t think thats going to happen. Trump is not an idealogue and I don’t think so-called Same-Sex marriage is too high on his list of priorities.

          • Gary

            Trump has made it clear that same-sex marriage is not on his list at all. He is very happy with the majority decision in Obergfell. But any judge that won’t vote to overturn Obergfell also won’t vote to overturn Roe v Wade. Trump said he wanted Supreme Court judges along the lines of Scalia, but Scalia opposed the majority decision in Obergfell, and I’m pretty sure he would have voted to overturn Roe, if he had the opportunity. Roe and Obergfell have no basis in the Constitution, and are examples of the court legislating, which they lack the authority to do.

          • Michael Gore

            which is why it is good that the Trump list for Supreme Court is full of Constitutional Conservatives, the same ideology of law that Scalia held. Trump doesn’t care about Obergfell, so it’s not like he’s going to be actively trying to place a pro-SSM judge on the court. And with the vetting that conservative and constitutional groups have done with the judges on his list, as long as he sticks to it, it will be fine. thats why it’s important that all of us hold him to his promise to follow the list he proposed.

        • Who knows for sure. But we sure know what kind of justices would have been nominated by Clinton. A bird in the hand is worth two in the bush.

    • Mara319

      Trump did not endorse same sex “marriage.” He merely said it’s the law, perhaps to say he can’t ban it. Let’s hope his SC can, eventually.

  • Nothing matters but getting the right person on the court. The list merely showed the direction Trump would go. Obviously there are many others including Cruz who would be effective originalist judges.

    • Mara319

      I hope he sticks with the list. That’s what I voted for him for (okay, also on immigration.) Making the list public early on allowed voters to vet them on their own. Adding or deleting names from it would be a roll of the dice.

  • Michael Gore

    I was really hoping to see Chief Justice Cruz some day, and perhaps I will yet, but I have to admit, I can’t find fault with your argumentation. If Trump goes back on the list he put out for nominees, even if it is for somebody I would applaud to see put in, it would hurt his credibility at sticking to what he has promised.

  • Don

    Ted is too young to be locked up in the musty chambers of the Supreme Court so soon…. give us four or eight more years in the senate, then eight years as president, and if he’s not ready to retire then he can have the black robe. Yeah?

    • wayne tell’em

      No, Donny. I guess you didn’t get the memo that no one likes Lyin’ Ted. Not even a conservatard like yourself.

  • Mara319

    Dershowitz said Cruz was an Constitution originalist most of the time, but would go for a more modern interpretation if it suits him.

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