Michael Knowles (5:00)

I know early on when Judge Barrett was announced as the nominee, you heard some, what I felt were very ugly and politically ill advised attacks on her family and on her religion. And the attacks didn't play very well. And fortunately we're not really seeing any more of those. I remember Dick Durbin, now the number two Democrat in the Senate. He came out and more or less said that all Democrats could do was slow this thing down a little bit. But ultimately they couldn't do anything to stop Barrett on The court. So if they're not gonna lob those attacks and the attacks they're lobbying aren't working, what are they doing? What was the line of questioning that the Democrats were pursuing?

Ted Cruz (5:40)

So there was an irony to Durbin putting that message out, because the last time Judge Barrett was up, when she was nominated to the Court of Appeals, Durbin was one of the people who went after her for her faith. And he asked her then, this is three years ago, if she was an Orthodox Catholic. Orthodox was the adjective he used. Now, I'm pretty sure that she's not a member of the Greek Orthodox or Russian Orthodox Churches. So I'm not. Look, you're Catholic. What is an Orthodox Catholic, other than beyond, I guess, from a Senate Democrat's perspective, someone who actually believes this stuff. I think that's what he meant by it.

Michael Knowles (6:20)

But I think you've hit the nail on the head. She's not Eastern Orthodox. She doesn't have one of those long beards. She is Catholic and she's Orthodox, meaning she believes what the Catholic Church believes. This would be, as opposed to, say, a heterodox Catholic, such as. I'm just throwing out a name here. The Democratic presidential nominee, Joe Biden, who says that he does not agree with the Church on certain issues. So I can understand Senator Durbin's confusion. He probably doesn't know very many Orthodox Catholics. But as you say, I recall that attack did not play very well for Senator Durbin three years ago, and I think he probably wanted to caution his colleagues now.

Ted Cruz (6:55)

Well, Feinstein infamously said, with regard to Judge Barrett three years ago, the dogma lives loudly in this one. And it was a moment of really, I think, contempt and religious bigotry that backfired, as I'm glad it did. I'm glad the reaction was so strong. So somebody sent out the marching orders to the Democrats, don't go down the road of the attacks on faith again. And listen, for whatever reason, the Democrats, when they get talking points, they stick to them. And so it was ordered. You're not allowed to attack her on this. And they all stayed away from it. So that's good. I mean, that. I think they were nervous about the election coming up in a couple of weeks, and they didn't want to tick off Catholic voters or people of faith because it's persecuting someone. You know, maintaining the position that no one of faith can be a judge is a pretty extreme position. And it's also unconstitutional. I mean, the Constitution, explicitly. The text of the Constitution prohibits a religious test for anyone serving in public office. Given that, what's interesting is they didn't even really decide to go after her record, to go after anything. The principal talking points that the Democrats are emphasizing is attacking the president, that they're just using this to say, trump, bad, Orange man bad. And it's all about Obamacare. It's all about Obamacare. And their argument is that if Judge Baradas confirmed, the Supreme Court will strike down Obamacare and a gazillion people will be denied healthcare and people with preexisting conditions will be denied healthcare. And they basically are making it's. You gotta be impressed at the discipline that virtually every Democrat says that almost word for word. I mean, they read from their talking points, and the arguments they're making are not judicial arguments. They're not actually arguments. It's not the Supreme Court's job to decide them. Listen, every senator agrees we're going to protect preexisting conditions. Every Republican agrees with that. Every Democrat agrees with that. Now, there are disagreements on how you protect preexisting conditions. And I think Obamacare has been a train wreck. It's driven premiums through the roof and it's very unpopular. But that is a policy question for Congress to debate. That's not. The court is not gonna decide what's the best system of healthcare. And so one of the main general election arguments the Democrats are mounting is this preexisting conditions attack. And it was striking a number of the Democrats. They all but ignored Judge Barrett. They just had their talking points. Trump hates you and wants everyone to die. And, you know, Judge Barrett just kind of sat there and smiled while. I mean, that was not directed to her and her fitness and record to serve on the court. But I thought it was interesting how half hearted they were in going after her. They barely tried.

Michael Knowles (10:06)

Well, on the healthcare point, I was speaking to a fairly prominent Democrat operative during the midterms a couple years ago, and this operative told me that basically the only winning issue for Democrats was healthcare. And not Obamacare, by the way, just sort of broad healthcare reform, healthcare protections.

Ted Cruz (10:23)

Right.

Michael Knowles (10:23)

Because the promises on the campaign trail are always, we're gonna give you a lot of free stuff, and it's gonna make everybody healthier and better. So they keep hammering that home. It's obviously much less contentious than, say, abortion or going after somebody's faith or something to that effect.

Ted Cruz (10:37)

Well, you know, in 2018, Chuck Schumer dropped several million dollars in attack ads against me. And closing week of my reelection campaign, and it was all Preexisting conditions. It was, Ted wants to take away coverage for preexisting conditions. Now. We immediately pivoted and hit him back and said, no, we're gonna protect preexisting conditions. And you've driven costs through the roof and people can't afford healthcare. And it, I mean, we have always been a very data driven operation. And the polling showed that when we counter punched, it completely neutralized the attack. But they put hundreds of millions of dollars behind that attack nationally in 2018, and they're doing it again this cycle.

Michael Knowles (11:17)

Well, I want to get into those hundreds of millions of dollars because I agree with you watching. I didn't watch 12 hours of it today, but watching what I did, it did seem half hearted. Senator Feinstein went for Roe versus Wade. That kind of flopped. I felt Kamala Harris flopped. I just felt so many of the attacks were weak. The only one that caught my interest was from your colleague, the Democrat Sheldon Whitehouse, who launched an attack on at the funding of the conservative judicial movement, basically saying that dark money was behind the selection of Judge Barrett. And then he didn't quite explain what that meant. But the conclusion, of course, was Barrett is an illegitimate nominee and there's no way we should confirm her. Where is all that dark money, Senator?

Ted Cruz (11:59)

So it was a fairly extraordinary. So Sheldon talked for 30 minutes. He didn't ask Judge Barrett a single question. So she just sat there while he put on and he had these little charts he had. And it was interesting. Ben Sasse later in the afternoon referred to it as a Beautiful Mind presentation. But there's a reason for his presentation. So White House has been pushing this for a long time. There's a concerted effort to delegitimize the court. And that's part of his narrative, is that he says that secretive corporate billionaires are funding Republicans and the court is bought and paid for and it's illegitimate. And this is connected to their whole effort to pack the court. This is all. Sheldon's objective is to delegitimize the Supreme Court. And my questioning was immediately after his. And that's usually the case in terms of the seniority. I normally go between White House and Klobuchar. And so often I'm often have a chance to respond to White House. And then Klobuchar has discovered she gets lots of likes when she like says something nasty about me, which is, Amy and I actually get along quite well. But it makes lefties really happy when she attacks me. So she often will chime in with.

Michael Knowles (13:24)

Somebody, you're gonna totally kill her credibility now that you say that you and she get along very well. There go all the Facebook likes.

Ted Cruz (13:30)

So White House, I took the chance to really lay into his premise. As you know, in the world of campaign finance reform, and this is something Sheldon says all the time, but Democrats say all the time is big money is behind the Republicans. It just happens to be there's a lot more big money behind Democrats that if you want to know where the big money is. So if you look at, for example, in 2016, of the top 20 super PAC donors in America, do you know how many gave almost exclusively to Democrats? Of the top 2014 gave almost exclusively to Democrats. Three gave about evenly Democrat and Republican. And only two of the top 20 gave primarily to Republicans overwhelmingly. And by the way, the difference in dollars in that cycle, 2016 cycle, Republicans had $189 million spent supporting their elections. Democrats had $422 million. And it was, you know, and, and, and you know, Sheldon was bellowing, you know, these mysterious dark money donors, they want something for it. They want something. You don't give that kind of money for nothing. I mean he was, he was, I was really tempted to jump in and be, you know, Sheldon, that they're decaffeinated brands in the market that are just as tasty like, like just, just relax there, son.

Michael Knowles (14:50)

Just deep breath, steep breaths.

Ted Cruz (14:52)

But look, if you look at this cycle, the Fortune 500 overwhelmingly supporting Joe Biden over Donald Trump, Wall street overwhelmingly supporting Joe Biden over Trump, the entire narrative that it's big corporate interests supporting Republicans, it's just not right.

Michael Knowles (15:14)

What you've pointed to here, Senator, I think is key. Cuz I couldn't make sense of it. I knew that he was putting on a big show, but the whole time I was watching it, I thought what is the point he's trying to make? You know, he had step one, raise a lot of money. Step two, I don't know, step three, you have a judge on the court, but then often the judges disappoint the people who want to appoint them anyway. I just couldn't get what the point was. But what you're saying is there's no point about the money. It's simply part of a broader performance to delegitimize the court.

Ted Cruz (15:46)

Yes. And that, and it's also to say the court is bought and paid for, but it's also to justify a Democratic power grab and a regulation of speech. And so I use my questioning to talk quite a bit about what the Democrats want to See, from left wing Supreme Court justices. As you know, my new book came out a couple of weeks ago, one vote away. How a Single Seat on the Supreme Court Can Change History.

Michael Knowles (16:14)

A New York Times bestseller, I believe. Is that correct?

Ted Cruz (16:16)

It is. And it was the number one bestseller in the country on Amazon. So I mean, it really. A lot of people have been buying it. A lot of folks who listen to verdict. Thank you for that. I appreciate that. There's a chapter in the book on Citizens United. And so my questioning today, I wanted to explain. You know, a lot of folks have heard of Citizens United, but they don't know what the case is about. They know Democrats hate it. And so I explain. Citizens United was at its heart about whether we can criticize politicians. And in particular. So what happened? Citizens United is a small nonprofit organization based in D.C. they made a movie that was critical of Hillary Clinton and the Obama Justice Department went after them and wanted to be able to find them for daring to criticize Hillary Clinton in a movie. And the case went all the way to the Supreme Court. And there was one exchange at the oral argument, Michael, that was really chilling where Justice Sam Alito asked, the lawyer for the Obama Justice Department said, under your theory of the case, can the government ban books? And the Obama Justice Department lawyer said, yes, yes, the government can ban books if they're critical of a politician. And ultimately the court struck that down 5, 4. But there were four justices ready to say that the government can ban movies and the government can ban books. And it's what I tried to do in the book, one vote away is every chapter emphasizes, look, we had four votes to say the Nevermind what the First Amendment says, nevermind free speech. The government has the power to ban movies or books if they don't like the content of them. That's really terrifying. And that's what White House and the other Democrats were trying to build the predicate for. They want to be in charge, frankly of silencing you, of silencing me, of silencing anyone who says something they disagree with.

Michael Knowles (18:22)

Before we get to mailbag, I do wanna get to a mailbag question. I do have to ask this though, Senator. I know we had all been joking on the right that the Democrats were going to pull a Kavanaugh on Judge Barrett, that they were going to accuse her of sexual harassment or something like that. And then tell me I'm crazy. Tell me I misheard it. While I was watching today, did Senator Mazie Hirono of Hawaii actually ask Judge Barrett if she had sexually Harassed anybody.

Ted Cruz (18:51)

Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?

Michael Knowles (19:01)

No.

Ted Cruz (19:01)

Senator Hirono, have you ever faced discipline or entered into a settlement related to this kind of conduct? No, Senator. So she did. And I will admit it was one of the most incongruous moments. Like if you were to pick perhaps the least likely person on planet Earth to sexually harass someone, it may well be Judge Amy Coney Barrett. I will say, in Mazie Hirono's defense, and I don't often come to Mazy's defense, she consistently asks that question of every nominee before her, and she's done that since she got elected. And so it's if you're nominated to be a judge, if you're nominated to be in anything where Mazie is gonna be on the committee confirming you, she will ask that same question. And I actually respect that she asked that. I mean, I think it certainly caused a lot of nominees to think twice about, okay, how are they gonna answer it? And look, I think it's a reasonable thing for the Senate to ask, and I think it's fine that she applies it evenhandedly and consistently. I think it's actually a good thing that she applies it to everyone.

Michael Knowles (20:18)

Well, a very fine kind word to say about Senator Hirono, and I think we're all very pleased that Judge Barrett was able to answer that very quickly. They moved on. Before we go, we've only got a couple minutes left. I do want to get to a couple mailbag questions. This first one is from. I promise you, this is not my account. I think it's a listen or a verdict. The account is verdict, sir Knowles, commander of the British Empire, not me. What would happen if the Senate majority just refused to fill a. A Supreme Court vacancy for an extended period of time? So not a few months of a campaign, but let's say two years or three years.

Ted Cruz (20:58)

Now, look, the seat would remain vacant, and it does seem we are moving in that direction, where I am not sure we will see a Senate filling Supreme Court seats for the opposite party's president, and it's just judicial nominees. If, for example, we started next year with, let's suppose Trump won and Schumer took the Senate, I think the odds are pretty high that they might not even fill any court of appeals judge seats. At a minimum, if you had the Senate and the president of opposing parties, there would have to be major compromise on the nominee to get someone through, because I think it has become such a partisan divide in terms of what people are looking for in judges that I think both parties right now would be hesitant to. Although, to be fair, Republicans have demonstrated a lot more willingness to confirm Democratic nominees than vice versa.

Michael Knowles (22:07)

I remember. I think it was Justice Kennedy. But as recently as Justice Kennedy was confirmed unanimously, Justice Ginsburg was confirmed overwhelmingly. Now, it seems that all of these are the biggest battleground of all.

Ted Cruz (22:20)

Well, look. And Sotomayor and Kagan. So both of Obama's appointees, there were a number of Republicans that voted to confirm them. So there were many more Republicans. I forget I wasn't there for Sotomayor and Kagan, but. So Lindsey Graham voted to confirm both of them. You remember when he got. Lindsey got so mad at the Kavanaugh thing, and he kind of blew up and had sort of the viral moment. In fact, I told you, when Lindsay did that, my mom texted me and said, okay, I love Lindsey Graham. Now, that was in the Kavanaugh hearing. And by the way, my mom is quite conservative, and I think it's fair to say she did not previously love Lindsay. And so the passion with which he unloaded. But one of the things he said there is. He said he voted to confirm both Sotomayor and Kagan, and the Democrats had none of that reciprocity for Trump's nominees.

Michael Knowles (23:14)

One last question before we go. I know this is on a lot of people's minds because they keep asking me about it. This is from Cole. Cole is a poli sci student in Wisconsin. What is the difference between originalism and textualism? We hear these terms used as if they are synonyms, but they're not synonyms. Right.

Ted Cruz (23:34)

So they're not. And the simplest difference is originalism refers to the Constitution and textualism refers to statutes which are federal laws passed by Congress, but it's not the Constitution. So let's unpack that a little bit. But that's the simplest way to think about it. So originalism is how do you go about understanding the terms of the Constitution? And originalism is you should understand the terms based on the original public meaning, not what the framers were thinking in their heads, not their subjective, not the intentions. Correct. So let's take, for example, the Second Amendment, the right to keep and bear arms. The operative language of the Second Amendment is the right of the people to keep and bear arms shall not be infringed. And if you look at Justice Scalia's opinion in Heller, which is the landmark Second Amendment case, it has a great deal of analysis on what the phrase the right of the people was understood by the American people when the Constitution, and specifically the Bill of rights, the Second Amendment, was ratified. So in 1791, what that and the right of the people, it turns out, is a term of art. It's used elsewhere in the Bill of Rights. It's used the right of the people peaceably to assemble. So that is clearly an individual right there. It's also used. That's in the First Amendment, the Fourth Amendment, the right of the people to be secure from unreasonable searches and seizures. So one of the things Scalia walked through is the right of the people was a term of art that always referred to an individual right, something that you as an individual can claim. And what keeping bear arms means, not what James Madison was thinking, but what the American people, when it was ratified, understood it to be. That's originalism. Textualism is how you interpret a statute, a federal law. And the principle is actually, it has similarities in that it is, again, the plain meaning of the language based on the public, what was understood, what a reasonably informed observer would understood the language to be. Now, there's some potential tension between the two. And actually, some of the very last questioning today was from Senator John Kennedy, a Republican who got into some of the tension on it. And it's interesting. You know, Kennedy's a very smart guy. He kind of plays sort of like a Matlock country lawyer, but he's got some real gray matter. And I think he was enjoying pushing Judge Barrett. He was having. He was like a pig and slop. He was having so much fun kind of just pushing her on this. There is some arguable tension in that textualism avoids relying on what's called legislative history. And to understand that some of it is, you have to go back to how courts used to interpret statutes. If you go back to the 1960s, the 1970s, there were decisions that would start with, they'd basically ignore the language of the law. They'd ignore the text of the statute, and they'd say, well, here was the legislative intent. Here's what Senator so and so said on the floor he wanted to do. So that's what the statute's trying to do. Or here's what this committee report said they were trying to do. By the way, committee reports are often written by staffers who are never elected, and they'll put things in committee reports to influence litigation later on. So it was a particular way of sort of hiding something in there to influence a case that's not the law of the United States. And so the leading proponent of textualism as a means of interpreting federal statutes was Justice Scalia. And when he started really in the 1980s, started in the 70s, but really the 1980s, and went on to the Court of Appeals in the 1990s and 2000s on the Supreme Court, he refused to look at legislative history. And he said it's illegitimate, it's not the law, I'm not gonna look at it. A majority of the Supreme Court doesn't agree with that methodology. But Scalia almost single handedly changed how courts look at statutes. Now everyone starts with a text now. I mean, it's really an amazing. If you grab any statutory interpretation case from the 60s compared to today, it's night and day where even the most lefty judges start with the text. They might disregard it, but they at least the analysis begins there. And I think that's a much fairer and more predictable way to decide cases. One of the things you want in a nation of laws is predictable outcomes. And you know, if you're a private citizen, you're trying to determine what's the law say, the easiest way to do it is go look at the text of the law. And if it's clear, if you know that's gonna be the answer, you can behave accordingly. If a judge might follow the language, might not might set it aside if he or she disagrees, that's much harder to predict when you don't know what judge is gonna be deciding some case in the future.

Michael Knowles (29:07)

And so that's textualism in our remaining few seconds here. Speaking of predictable outcomes, do you have any predictions for what will during the hearings tomorrow, or is it anybody's guess?

Ted Cruz (29:20)

So tomorrow we're going to have another round of questions. It'll be shorter Tomorrow, it's only 20 minutes. So instead of 30 minute rounds. So the day presumably will end several hours earlier, which will be good. I think the Dems have run out of steam. I think they've lost a lot of their energy. I will say, by the way, Michael, I've got to credit you. One of the better moments in the hearing was when my colleague John Cornyn asked Judge Barrett said, you know, what notes do you have in front of you? And she didn't have any binder, she had nothing she was reading from. And she just held up a blank notepad. And I will say I'm impressed, Michael, that she held up what was apparently a page from your book. It was entirely blank and that's what she was relying on. And let me ask you something, Michael, how do I write a book on the U.S. frigging Supreme Court, and she reads from your book and not my book at the hearing.

Michael Knowles (30:21)

You know, Senator, you've shared so much of your wisdom with me. At some point, I'm more than happy to brief you on my book. I'm really honored you've played, I think, a more direct role in the history of this Supreme Court nomination and confirmation process. I am pleased that I could play a modest role as Judge Barrett raised what was clearly a page from my blank book. We will look forward to tomorrow, by.

Ted Cruz (30:47)

The way, on a reprint. You might want that image on the COVID of your book. Now, for holding up the blank page at a minimum, that's gotta be like your online ad for the book.

Michael Knowles (30:57)

I know. I wonder, does it count as a blurb if she didn't say anything? Perhaps. Perhaps we'll add it to the next edition. Senator, best of luck tomorrow at the hearings. Until then, I'm Michael Knowles. This is Verdict with Ted Cruz.

Ted Cruz (31:18)

This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom, and Security pac, a political action committee dedicated to supporting conservative causes, organizations, and candidates across the country. In 2022, jobs, freedom and Security PAC plans to donate to conservative candidates running for Congress and help the Republican Party across the nation.