Saving ‘The List’ Trumps Getting Cruz on the Court

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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