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- [00:01]
Michael Knowles
There was one thing that could have happened to make this 2020 election cycle more tense, more divisive, more dangerous, and it happened. Ruth Bader Ginsburg has died at the age of 87. There is an open seat on the Supreme Court. This is Verdict with Ted Cruz. Welcome back to Verdict with Ted Cruz. I'm Michael Knowles, joined by by someone on President Trump's short list for the Supreme Court. Senator Ted Cruz, though. Senator Cruz, though, I will ask you again, and again, you have already expressed you are not interested in the job.
- [00:41]
Ted Cruz
Well, that's right, I'm not. But what I'm very interested in, and I'll tell you the reason I'm not interested in the job, is the fight we have in the Senate. The President has said, rightly, that he's going to make his nomination this week. That's the right thing to do. And I think it's critical that the Senate confirm that justice before Election Day. And that's part of the reason why I don't wanna serve on the court, is that right now I got a job to do, which is lead the fight to get that justice confirmed. And I hope several more justices afterwards in the President's second term.
- [01:14]
Michael Knowles
So we've already established your position, which happens to be my position, that absolutely the President should nominate a judge to fill this seat. Absolutely, the Senate should confirm that judge. But this is, I guess, a controversial because Democrats are Now pointing to 2016, when Justice Scalia died and Barack Obama put up Merrick Garland as a potential Supreme Court nominee. And then. And current Senate Majority Leader Mitch McConnell said, no way. We're not gonna have a hearing. You're not gonna get it in an election year. Democrats, Senator, are accusing us of hypocrisy.
- [01:47]
Ted Cruz
Well, and I think it's important for people to understand this issue because it's easy to look back to 2016 with Merrick Garland and all the positions were reversed. So the Republicans were all saying, we're not gonna fill that seat. I said that the day Justice Scalia passed away. And by the way, the Democrats were all saying, we must fill the seat. We must fill the seat. We must fill the seat. And now, four years later, everything is magically reversed. And Republicans are saying, we must fill the seat. And Democrats are saying, under no circumstances can you fill the seat. And the press is having a field day saying, of course, it's the Republicans who are hypocritical, not the Democrats. Nobody seems to have noticed that Joe Biden and Hillary Clinton and Barack Obama and Chuck Schumer and Every bloody Democrat in the US Senate has reversed 180 degrees. But actually, if you understand the history, I don't believe either side is being hypocritical. I think they're actually following the principles they believe in. And so, look, someone could be forgiven for saying, well, what's different? What does the Senate typically do? What does the president typically do? And it turns out there's an answer. So this is not the first time this has happened in our nation's history. This has happened 27 times before. So 27 times there has been a Supreme Court vacancy that has occurred during a presidential year, and presidents have nominated a justice to fill that vacancy 27 times. That's what presidents do. It's actually an easy decision for President Trump's decision. By the way, a total of 44 people have been President of the United States. Half of them have faced this decision. 22. Half of the people who served as president have faced this decision, and every single one has nominated. Now, what has the Senate done? And this is where it's important to understand why 2016 and 2020 are very, very different. What the Senate has done is very, very different. Depending on whether the Senate is of the same party as the president or a different party from the president, those are radically different. So of the 27 times there have been vacancies, 19 of them have occurred when the Senate is the same party as the President. Of those 19, the Senate has confirmed 17. Huh.
- [04:16]
Michael Knowles
I would have guessed all 19, but 17 makes sense.
- [04:20]
Ted Cruz
17. Of the 19, when the President and the senator of the same party, the Senate confirms them. On the other hand, what about when there are different parties? That's happened 10 times in our nation's history. That happened with Merrick Garland. Barack Obama was a Democrat. There was a Republican senate. Of the 10 times that's happened, the Senate has confirmed the nominee only twice. Yeah. So there's a pattern that goes back two centuries. You know, I gotta say something here, Michael. It's easy for people to say, well, gosh, well, then it's just people being partisan. Well, there's more to it than that, actually, because under our Constitution, elections matter. Under our Constitution, particularly right now, if you think about it, in 2016, Donald Trump ran on the kind of justice he intended to nominate to replace Antonin Scalia and to replace any other justices. The vacancies that occurred. He was elected. That was a major reason he was elected. That was the biggest reason I voted for Donald Trump over Hillary Clinton is the kind of justices he promised to appoint on the Other hand, Hillary Clinton promised to nominate liberal activists, and the American people voted against her. Likewise, the US Senate. A big, big reason we have a Republican majority in the Senate is that Republican senators promise to confirm constitutionalist judges to the court and to block liberal activists. And the American people elected Republicans to the Senate in 2014, in 2016, and they actually grew the Republican majority in 2018. And so when you have all these reporters pulling their hair out and saying, well, because you blocked President Obama's nominee, you have to block Trump's, that's just silly, and it's utterly ahistorical, and it's not consistent with the history of the country.
- [06:14]
Michael Knowles
Of course, this charge of hypocrisy seems sort of silly to me because we elect our politicians to exercise the political power they can, and that will change by the circumstances. But I don't fault Barack Obama for putting up Merrick Garland. I don't fault Mitch McConnell for not taking up that nomination. I don't fault President Trump or the senators in the GOP for now pushing forward this nomination. And obviously, I hope it goes through. On that point, Senator, since I am not in that exclusive Club in Washington, D.C. can you tell us what is going on right now? What is the gop? What are the GOP senators discussing? How is this process going to play out?
- [06:54]
Ted Cruz
Well, people are losing their minds. Look, and I'm concerned. You mentioned in the open show how tense things are. We've already seen, unfortunately, violence in the street. I'm very concerned. It's gonna get worse. You're seeing Democrats threaten it to get worse. You're seeing liberal journalists threaten violence. And I think the Democratic senators are. Chuck Schumer has threatened. He's boomed. Everything is on the table, which, frankly, I don't think it's terribly consequential because they intended to be radical and extreme regardless. So they're still gonna be radical and extreme if they win. Look, the big question is, where are the Republican votes gonna be? Every Democrat is gonna vote no. So there are 53 Republicans. There are 47 Democrats. We know there are 47 nos. I believe we will have the votes, and I believe it's important that we confirm this nominee before Election Day. To be honest, the math, I don't think plays out all that differently from impeachment. And you and I spent a lot of time in verdict talking about impeachment. We knew at the time that the votes that were really in question, you had Susan Collins. And she's already made public comments suggesting that she does not want to Confirm a nominee before election day. You have Lisa Murkowski, who likewise has made public comments. And then look, the next votes that you look to. Mitt Romney obviously voted to convict the president of impeachment. I think a lot of people are wondering how Mitt's gonna vote. I don't know. He hadn't said. He's playing his cards pretty close to the best, so we'll see. I think even if the three of them ended up end up voting no, that's still 50. 50, which means the vice president breaks the tie. I don't think there are four no votes now. It depends on the nominee. If something disastrous happened with the nominee, that could change the math. But assuming that the president nominates a serious, credible judicial nomination, I think we'll have the votes to confirm the justice. And I think it is very important that we do so before the election. And let me tell you why. Joe Biden has been incredibly clear that he intends to challenge the results of this election. If he doesn't win, he's hired a team of lawyers headed by veteran Supreme Court advocates to get ready to challenge the election. I think there are one or two outcomes on election Day. Either Biden wins, in which case the Democrats celebrate and the media celebrates, or if Biden doesn't win, I think the chances are 100% they go to court and challenge the result. We know that Hillary Clinton has told Joe Biden, under no circumstances should you concede this election, no matter what. This weekend, I did the George Stephanopoulos show, and I made this point. And I gotta say. And look, I know George fairly well. I've done his show a number of times. This is the point he got most agitated about. This is the point he jumped in, he said, no, no, no, no, no, no. It's Trump who's challenging the legitimacy election. What nonsense. And it's very weird. The Democrats and the media, it's like a Freudian projection. They accuse the other side of doing what they're doing. Given the almost certainty that Biden's gonna be challenging the election, if this seat is not filled by election Day, we would have eight justices on the court. If the Supreme Court deadlocks four. Four, it can't reach a decision. So an equally divided court has no authority to decide anything and understand the chaos of this. So some people say, okay, fine, well, what happens if you don't have a Supreme Court that could decide it? Well, I think the odds are very high that we will see if Biden loses, not just one lawsuit or one contested election like we had in 2000 in Bush versus Gore. In Florida, you had multiple lawsuits, but just one state being challenged. I think Biden is likely to bring multiple cases all over the country in any close state, and we could end up with conflicting decisions from conflicting circuit courts. And if there's no Supreme Court, you can't resolve those conflicts. And we could easily find ourselves in the midst of a constitutional crisis with this presidential election taking days and, and then weeks and then months with no resolution. And that kind of chaos I don't believe Republicans should allow to happen. I don't think we will. But I think the stakes are very high to confirm the justice before election day. So there's a full nine justice Supreme Court in place if and when there are challenges to the election.
- [11:54]
Michael Knowles
This is a very persuasive argument that actually I haven't heard a ton of conservatives even talk about. And obviously conservatives are more eager to fill the seat than liberals or leftists are. But you've got this issue of possibly a Bush v. Gore 20 years later, but not just in one state. Now you could have it in, I don't know, three states, five states, even more, and you get all the way up to the Supreme Court. Imagine if Bush v. Gore had been an equally divided court. That would have been chaotic enough. That is really not something to look forward to. So very persuasive argument. You know, a lot of this debate now over whether or not to fill the seat has come down to the personal wishes of Justice Ginsburg. You have some Democrats now saying that it was Ruth Bader Ginsburg's dying wish that no Republican fill her seat. And of course, I don't know of any dying wish clause in the Constitution. But regardless, we also have video of Justice Ginsburg saying Now after the 2016 election cycle that the president absolutely must nominate a judge even in an election year, that the president does not cease to be the President just because it is an election year. So we've heard from her own mouth this idea that we should go forward with the nomination. We've heard from some people, I suppose, who knew her, that she wouldn't have wanted them to. It occurs to me, Senator, you have met Justice Ginsburg on a number of occasions. You've argued cases before the Supreme Court. Do you have any personal insight into the justice? Any personal reflections now that she's passed?
- [13:25]
Ted Cruz
Well, sure. Look, I did know Justice Ginsburg personally. I argued before her nine times. She, she was brilliant. Her personal story is remarkable. I mean, she was born and grew up in New York City. She ended up going to Cornell. She went to Harvard Law School, was one of the very first women ever to go to Harvard Law School. Her husband got a job at a New York law firm. And so she transferred from Harvard to Columbia. And she graduated from Columbia Law School, graduated tied number one in the class. She was on the Harvard Law Review. She was on the Columbia Law Review. And, you know, it's an amazing thing. When she was coming out of Columbia Law School, she applied for a Supreme Court clerkship with Justice Felix Frankfurter, renowned liberal justice. And he turned her down because she was a woman. He wouldn't hire a woman, despite. She had professors from law school making the case for her, but she got denied the clerkship. She had a hard time getting hired as a lawyer. And it's actually quite an amazing thing. Sandra Day O'Connor, who came out of Stanford Law School, she was number three in the class. Both of them were offered jobs as legal secretaries. I mean, you want to talk about serious discrimination, they're graduating at or near the top of their class and they can't get hired as first year lawyers. Justice Ginsburg ended up becoming a professor and then becoming a Supreme Court advocate. And she was actually one of the finest Supreme Court advocates to have ever lived when it comes to race and issues of equal justice before the law. Thurgood Marshall is really the pioneer of arguing cases to expand to fight racial injustice. Ruth Bader Ginsburg did the same thing when it comes to gender inequality. And she had a litigation strategy where she would challenge laws that were designed to benefit women, to give special benefits to women. But she challenged them as being inconsistent with the Constitution's equal protection clause, that the Constitution, she would argue, mandated that you treat men and women the same. And she really pioneered a transformation in law that I gotta say, as the father of two daughters, I'm really proud that we have moved away from legal discrimination and separate standards for men and women. And Justice Ginsburg, as an advocate, played a critical role in that.
- [15:57]
Michael Knowles
Hearing this sort of personal account from you is helping me to bolster my sort of personal like of Justice Ginsburg, because, of course, very famously, she was friends with Antonin Scalia. And for a lot of conservatives, that's enough for us to say, oh, she can't be all that bad. But to hear these personal stories does bolster that as well.
- [16:18]
Ted Cruz
Well, Scalia and Ginsburg really liked each other, and so it was interesting. Scalia was much closer to Ginsburg than, say, he was to Clarence Thomas. Jurisprudentially, they were much closer. But personally, and it was almost an odd couple friendship because Scalia was loud and boisterous and brilliant. I mean, Scalia was an extraordinary person. Ginsburg temperamentally, was very quiet. She was very prim and proper. She had the personality almost of a librarian. But she was brilliant, and it was interesting. She and Scalia enjoyed opera together, and they would go to opera. And I think Scalia made her laugh. He was such an ebullient personality that she enjoyed him. You know, when I was arguing in front of her, her questions were always careful. They were incisive. She was a dangerous questioner. Most of the big cases that I argued before her, she voted against me. Although, interestingly enough, one of the bigger cases I argued was Medellin vs Texas, where Texas stood up and fought the World Court in the United nations and the President of the United States. And I argued it twice, won 5, 4 the first time, 6, 3 the second time. The first time I won the 5, 4 included Justice Ginsburg. She was the necessary fifth vote that if she had voted against the state of Texas, we would have lost. We lost Sandra Day O'Connor. But we picked up Justice Ginsburg as our fifth vote. And that was very important for the court ultimately striking down the World Court and the President's overreach of power. I can tell you another Ginsburg story, which is one of the cases I argued before the court was the Texas redistricting case. And you may remember that about 15 years ago, there was some news about Justice Ginsburg falling asleep at oral argument, and it made the papers all over the place. Well, here's a bit of trivia. The lawyer at the podium when she fell asleep was me.
- [18:26]
Michael Knowles
You're kidding.
- [18:28]
Ted Cruz
It was the Texas redistricting case. It was an afternoon argument, which is unusual. Normally arguments are in the morning. This argument was from 1 to 3pm so it was double the length of a normal argument. And so I argued for 50 minutes, and she put her head down and she was out for a good 20 minutes. I mean, she was asleep. And at the time, I was teaching a class on Supreme Court litigation at University of Texas Law School. So I came back the next week to my class, and my students were cracking up, laughing. I mean, this had made news that Justice Ginsburg had fallen asleep. And I told her, I said, look, you know, I told my students, I said, listen, that's really what every advocate aspires to, to render your adjudicator unconscious.
- [19:19]
Michael Knowles
Yeah, that's through the power of your argument. So.
- [19:23]
Ted Cruz
Well, I joked, there's a way you do it, which is you speak in a soporific tone and you gently rock side by side and you just knock them right out. And interestingly enough, in that case, Justice Ginsburg did not need to be awake to vote against me. She voted in dissent. Fortunately, I won the case. 5, 4. But she was on the dissenting side. One other Ginsburg story I'll tell. Yeah. When I started my career as a law clerk for Chief Justice William Rehnquist, the Chief liked Justice Ginsburg. He thought she was a very careful lawyer. And if there was a case whose legal outcome the Chief didn't like, but he was in the majority. And there were some instances where the votes on the Court were with the left and the Chief would be with the majority. Justice Ginsburg was the liberal justice he most liked to assign the opinion to because she was a very careful lawyer. And so if there's a particular issue that he may have not been thrilled with, the legal outcome, he knew that she would just resolve that narrow issue before the Court and wouldn't write this undisciplined opinion. You know, it would be interesting. Justice Souter, who was on the Court, if he had a majority opinion, he could drop footnotes that would wreak havoc to whole other areas of law.
- [20:48]
Michael Knowles
Right.
- [20:48]
Ted Cruz
And Ginsburg wouldn't do that. She would focus on the issue. So Ginsburg, by far, was who the Chief most liked to assign it to if it was going to be someone from the left on the court.
- [20:58]
Michael Knowles
Well, this brings us to a mailbag question that's came out to me, and I'd be curious to hear your thoughts on it. This is from Rogue Millennial, who says, obviously so much of the debate over Justice Ginsburg's old seat and filling the vacancy comes down to Roe v. Wade. It comes down to abortion. And Rogue Millennial asks if a conservative majority, scotus, considers overturning Roe v. Wade is the wiser path to overturn it simply and return legislative power to the states, or should they. Or would they seek to go further and to rule on the 14th Amendment as protecting the unborn, regardless of state laws?
- [21:39]
Ted Cruz
So that's a very savvy question. And it's important to highlight what Roe vs. Wade did, because a lot of people don't know. I mean, they know they've heard of the case. They know it has to do with abortion, but they don't actually understand what Roe vs Wade did. So Roe vs Wade was decided in 1973. Prior to Roe vs Wade, abortion was a state law matter and each state had different laws on abortion. Some states were quite permissive with it, some states were quite restrictive with it. What the Supreme Court did with Roe versus Wade is largely took it out of the hands of the elected legislatures. So if Roe vs Wade were overturned, it wouldn't suddenly make abortion illegal. What it would do is return the decision to the states. And what we would see as a practical matter is different standards again, state by state. So you're right. Now in California, nobody thinks there's any possibility the California legislature would act to restrict abortion. That would be true in a number of the blue states. New York, in other states, New York, California. In other states, you would see far more significant limitations put in place. And you know, there's a virtue to that, which is. Supreme Court Justice Louis Brandeis talked about the 50 states as laboratories of democracy. What you would see is abortion laws that reflect the values of the citizens of each state. And as you know, I've got a book coming out One Vote Away. It's all about the Supreme Court. And by the way, I announced news just this week, which we moved up the release of the book by a week. It was coming out October 6th. It's now coming out a week from today, September 29th. It's called One Vote Away. And it has an entire chapter on abortion and Roe vs. Wade and partial birth abortion laws. Because one of the cases that I litigated, I represented the states as amici, as friends of the court defending the federal partial birth abortion law. So the federal law banning partial birth abortion, the court upheld that. Five, four. We're one vote away. If Joe Biden gets one more justice to replace one of the more conservative justices, we're one vote away from the Supreme Court concluding that every limitation on abortion is unconstitutional, that partial birth abortion is allowed, that no parental consent, no parental notification, that taxpayer funding is mandatory. You know, we talked about challenges to elections in Bush versus Gore. I've got an entire chapter talking about Bush versus Gore and preserving democracy. Bush versus Gore was 5, 4. Had there been only eight justices, that decision could have deadlocked. 8, 8. And instead of lasting or 4, 4 rather. And had that happened, instead of lasting 36 days, Bush versus Gore could have lasted months and months and months. And so the book One Vote Away, every chapter talks about a different constitutional right. You can pre order it right now. The website is OneVoteAway.com could not be more timely.
- [24:58]
Michael Knowles
And people should certainly go out and go read One Vote Away. And Senator, you should probably get back to the Capitol and work on this issue of making sure that that vote goes into the hands of a good constitutionalist Senator, thank you as always. In the meantime, I'm Michael Knowles. This is Verdict with Ted Cruz.
- [25:24]
Ted Cruz
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, the nation.