by Ted Cruz
In defending the State of Texas, I could have chosen to dispute the premise: to argue, no, the plan wasn’t really that political. To be sure, there were other causes or purposes for the lines that were drawn. But making that argument would not have been credible, and I have long believed the greatest asset any advocate has is his or her credibility. Accordingly, I conceded flat-out: of course, this map is political. It was drawn by elected politicians.
Much as in Humphrey Bogart’s Casablanca, “I’m shocked, shocked to find that gambling is going on in here!”—it should come as no surprise that elected politicians are, well, political. So I argued that to the Court. Of course elected officials are political, and the Framers of the Constitution knew precisely what they were doing when the Constitution gave the responsibility of redistricting to state legislatures. Though this might astonish some modern reporters, politics was not invented in the age of Trump. As long as there have been elections, politicians have been political.
Redistricting is not some novel phenomenon. Indeed, the very word “gerrymander” comes from Elbridge Gerry, a signer of the Declaration of Independence and a delegate to the 1787 Constitutional Convention, whose Massachusetts congressional district was so convoluted that it resembled a salamander.
The Framers knew well that elected politicians would be political, but they also knew that leaving redistricting decisions to elected legislators ensured that the People would ultimately decide. The leading alternative to the state legislatures’ drawing maps is to have federal judges draw the maps. But if a judge draws a map inconsistent with the will of the voters, there is no remedy. The voters have no avenue of accountability over the federal judiciary. That’s why the Framers allocated the decision to elected legislators instead.
Two moments from the oral argument were particularly noteworthy. One in a positive way; the other, not so much. During my argument, Justice Stevens, who was quite critical of my position, began a question to me by commenting that I made a “very persuasive argument in your brief, which I found to be very helpful.…” The visual completed it: as he was saying this, he held up our brief, smiled, and shook his head ruefully, because it was clear he was trying to articulate arguments as to why we were wrong. It was kind of him to say (even though he voted against us), and it remains the only Supreme Court argument I’ve seen where a justice has directly complimented one of the briefs before the Court. It was a generous sentiment for which I was grateful.
The other notable moment concerned Justice Ruth Bader Ginsburg. Midway through my argument, she put her head down on the bench and fell asleep. For roughly ten minutes, Justice Ginsburg slept. Her doing so made national news at the time. When I returned to Austin the next week, I went to teach my weekly class at the University of Texas School of Law on Supreme Court litigation. My students had seen the news about Justice Ginsburg’s falling asleep at the argument. Laughing, I admitted to them that I had been the counsel at the podium when she did so. I went on to tell them, “That’s the objective to which every advocate aspires, to render your adjudicator unconscious.” “And,” I joked, “there is a method to accomplish that task: You simply speak in soporific tones, and gently rock side-to-side, and the justice will drift off to sleep.”
As it so happened, Justice Ginsburg did not need to be awake to vote against my position. But, when the Court handed down its decision, Texas prevailed 5–4. On practically every question before the Court, Texas won, with the Court concluding that the Texas redistricting map should not be set aside merely because the Texas Legislature had made political determinations in drawing it. The Court did strike down one specific district in Texas, which resulted in the map being slightly redrawn, but overall it was a near-total victory.
Many aspects of redistricting litigation are less than ideal. As Chief Justice Roberts wrote in a different case concerning affirmative action, “it is a sordid business, this divvying us up by race.” And observers have rightly recognized that gerrymandered districts produce less than ideal representation, and that individual members instead respond to however their specific districts are configured. Some have understandably criticized the process as representatives picking their constituents, rather than constituents picking their representatives.
Those are fair concerns, but they tend to be far more vocally advanced whenever one’s party is out of power. When Texas Democrats had a stranglehold on redistricting, not many Democrats spoke out against it. Since Republicans achieved a majority in the Texas Legislature, not many Republicans have spoken out against it.
The process is ugly, but it recalls Winston Churchill’s famous adage that “democracy is the worst form of Government, except for all those other forms that have been tried from time to time.” Likewise, congressional maps drawn by elected legislators have serious flaws. But the Framers of our Constitution entrusted those decisions to elected legislatures because they believed in democracy. Unaccountable federal judges drawing our maps would ultimately deprive the people of control over those crucial decisions.
The decision in LULAC v. Perry was 5–4. And when it comes to ensuring that We the People—the actual voters—control our elections, we are once again just one vote away.
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There were stark similarities between Bush v. Gore and Texas redistricting. I was reminded of those in January of this year, during the impeachment trial of President Trump. Both Bush v. Gore and redistricting were complicated legal battles, interwoven with political knife-fighting. Both were directed at multiple audiences simultaneously—not just the judges or justices making the legal determinations, but also, in a very direct sense, at the American people. When the House of Representatives voted to impeach President Trump, and the Senate was required to carry out its constitutional obligation to conduct a trial on that impeachment, I resolved to lead the effort in the Senate to make the legal case and the public case for why the conduct alleged did not satisfy the constitutional standard of “high crimes and misdemeanors.”
There is a unique species of litigation which occurs only rarely and is sometimes separated by decades, where politics, public messaging, and persuasion are all entirely enmeshed with the legal arguments. Having been through now three such major battles—Bush v. Gore, redistricting, and impeachment—I am particularly grateful to be serving today in the United States Senate, where the responsibilities of defending the Constitution, of drafting the law, and of overseeing the Executive are so often interconnected with the realities of politics, the battle in the media, and the needs of public persuasion.
CONCLUSION GETTING JUDICIAL NOMINATIONS RIGHT GOING FORWARD
Republicans have, historically speaking, been absolutely terrible at judicial nominations—especially nominations for Supreme Court justices. To borrow from baseball, Republicans at best bat .500. Once confirmed as justices, at most, half of Republicans’ Supreme Court nominations actually behave as we hoped they might behave in terms of remaining faithful to their oath of office and the Constitution.
Democrats, on the other hand, bat nearly 1.000. They are almost perfect in that almost every single Democratic Supreme Court nominee, on virtually every major case that is a hotly contested, votes exactly as the Democrats who appointed them would have wanted them to vote. Perhaps the most notable exception was Byron White, who was John F. Kennedy’s only Supreme Court nominee. Justice White’s great apostacy was that he was one of the two original dissenters in Roe, and sometimes he would also side with the more conservative justices on criminal cases. Aside from Justice White, Democrats’ Supreme Court justices, almost without exception, vote precisely as they would want them to.
It’s also not random or bad luck. There is a clearly definable pattern among Republican nominees, differentiating those justices who remained faithful to their oath, who stood strong and followed the Constitution, from those who did not.
Remember, if a judge changes on the bench, he or she always changes in the same way. Republican nominees only shift in one direction: they shif
t to the left. “Evolving” is the polite term. And it is because the pressure on a Supreme Court justice to move to the left is enormous. The press coverage consistently praises justices who vote with the left, heralding them as courageous heroes. Indeed, this past year, there were two separate movies that came out within months of each other, chronicling the life of Ruth Bader Ginsburg in hagiographic terms better suited for Mother Teresa or George Washington. Somehow Hollywood has never produced the film, Nino, The Extraordinary Justice Scalia.
So when Republican nominees side with the left on the Court, they’re praised in the newspaper, lionized as statesmen, and fêted publicly. This is so true that the former longtime Supreme Court reporter for the New York Times, Linda Greenhouse, had an entire syndrome named after her. Dubbed the “Greenhouse effect,” it was used to describe how justices like Anthony Kennedy and Sandra Day O’Connor gradually move ever more leftward in order to receive adoring praises from Greenhouse’s coverage in the New York Times.
It’s not just the press coverage; it’s also the entire dynamic of Washington, D.C. Justices who move to the left are welcome at cocktail parties. They are treated with respect, with deference, even with praise and adoration. They are among the “cool kids.” Republican-nominated Supreme Court justices who do not do that are barely acknowledged in polite society.
If you look back at the history of Republican nominations, there’s a clear difference between the Republican picks who stuck to their guns once they made it to the bench and those who backed down. And presidents and senators should examine that pattern before nominating or confirming anyone to the Court. The justices who have been most faithful to the Constitution include Justice Scalia, Justice Thomas, my old boss Chief Justice Rehnquist, and Justice Alito. All of them share important characteristics: Before they were nominated, each of those justices had a long and demonstrated record. Each had served in the executive branch, each had defended conservative or constitutionalist positions, and, critically, each had been roundly criticized for doing so.
Indeed, I believe there’s no better predictor of whether a Supreme Court justice will remain strong and faithful to the Constitution than whether he or she has a long record of being excoriated by the press, mocked by the legal academy, and ridiculed by polite society, and holding his or her ground nonetheless. Only by looking for stoic and adamant resistance to the “Greenhouse effect” can we reliably deduce that a prospective nominee has the mettle and the fortitude to stick to his or her convictions when confronted by Washington, D.C.’s proverbial storm of locusts.
We should also expect nominees to have real, demonstrated track records across the spectrum of constitutionalism. We don’t need jurists who are only sound on structural issues, or who are only sound on certain key Bill of Rights provisions, or who are “good” on criminal-justice issues while failing to uphold the Constitution in other domains. Rather, we need judges and justices who are committed to the full panoply of constitutional issues—and who have demonstrated their commitment and bled for those ideals over the course of their careers.
Incidentally, the flip side of these criteria is true, as well. Those justices who have been faithless, who have been willing to join the activists in imposing liberal policies regardless of what the Constitution might provide, often fall in a similar pattern: Typically, they have little to no record, they have assiduously avoided controversy, they have refrained from taking difficult stands, and they have avoided subjecting themselves to the harsh light of criticism. They have been timid where they could have been bold or assertive.
For seven decades, Republicans have gotten this wrong, starting in the 1950s. Two of the most liberal justices of the twentieth century were picked by the Republican President Dwight Eisenhower: Earl Warren and William Brennan. It was a time when the Supreme Court was not believed to be all that important. It was still, to borrow the Framers’ term, the “least dangerous” branch, and so nominations to the high court were seen as appropriate to use as political bargaining chips or for currying favor with needed electorates.
Warren had been the Republican governor of California and a formidable candidate for president. Going into the 1952 Republican convention in Chicago, Democrats had held the White House for two decades, since FDR’s election in 1932. As it so happens, two chief justices would arise from that convention.
Ideological divides in the party were present then, as now. Most of the Northeastern moderate Republicans supported General Eisenhower; most of the conservative Republicans supported Ohio Senator Robert Taft. On the first ballot, Eisenhower received 595 votes, 9 short of the 604 required for the nomination. Taft received 500 votes. Warren was in third, with 81 votes. Rounding out the field were former Minnesota governor Harold Stassen with 20 votes, and General Douglas MacArthur with 10.
Richard Nixon, then a forty-three-year-old fiery, anti-communist senator, was supporting his fellow Californian Earl Warren. Eisenhower ultimately would offer Nixon the vice presidency (which of course he accepted). Warren’s delegates initially refused to support Eisenhower, hoping that in deadlock the convention would settle on their candidate as a compromise. So all twenty of Stassen’s delegates switched to Eisenhower, giving him the majority needed to win. Warren Burger was the leader of Strassen’s convention supporters, delivering the critical votes, which set the stage for future President Nixon to later name him our fifteenth chief justice.
Earl Warren was more cagey in giving his own support. He demanded in exchange—and Eisenhower gave—a promise that he would be nominated for the next Supreme Court vacancy that occurred. What nobody knew was that, on September 8, 1953—just nine months into Eisenhower’s first term—Chief Justice Fred Vinson would die suddenly. Eisenhower sent his attorney general to California to meet with Warren, who had just returned from a hunting trip. He asked Warren whether he understood the promise to include the chief justiceship, rather than merely an associate justice position. “The first vacancy,” Warren replied.
And so the Warren Court was born.
Eisenhower’s second nomination to the Court was William Brennan, a New Jersey Supreme Court justice and a Democrat. Appointing him was seen as helpful to shoring up Eisenhower’s support with Catholics and Irish Americans.
Warren, of course, went on to preside over one of the most activist courts in history, and William Brennan single-handedly led the left on the Court for almost thirty-four years. A small man with a sparkling wit and an easy smile, Brennan excelled at persuading his fellow justices to join him in reshaping America. He was well known for describing the most important legal principle at the Supreme Court as what he would call, with a grin while holding up five fingers, the “Rule of Five.” As he would say, “with five votes, you can accomplish anything”—no matter what the law or Constitution said otherwise.
Eisenhower’s biographers reported that, in 1958, Eisenhower observed that he had made two mistakes as president, “and they are both sitting on the Supreme Court.” Alas, Warren and Brennan were hardly the only Republican mistakes.
When he became president, Richard Nixon did slightly better: overall, he got 25 percent of his nominations (who were confirmed) right. Nixon started his presidency with the historic opportunity to replace Chief Justice Warren, who had announced his retirement the year earlier. He first offered the chief justiceship to former New York governor Thomas Dewey, who turned it down. Dewey was an upper-crust aristocrat with a thin pencil mustache; Alice Roosevelt Longworth (Teddy’s eldest daughter) famously, and witheringly, described him as “the little man on the wedding cake.” He was the leading voice of the “moderate” Republicans—he described his own governing philosophy as “pay-as-you-go liberalism”—and, remarkably, he had turned down the very same offer of becoming chief justice previously from Eisenhower. Dewey, like Warren and Burger, had played a pivotal role at the 1952 convention, helping both Ike and Nixon secure their respective nominations; four years before that, in 1948, Dewey had been the (losing) Republican presidential no
minee against Harry S Truman. Dewey’s running mate? Earl Warren.
When Dewey turned him down, Nixon then nominated Warren Burger to become chief justice. Burger had a white mane of hair right out of central casting, but he was a pompous, dull, and mediocre court of appeals judge, who did little to turn around the liberal lurch of the Court. That being said, he was relatively effective in the political game of Washington, exerting real influence on presidential decisions. And, had history played out differently, his tenure on the Court might have been quite short. Nixon’s memoirs reveal that he asked Burger to be prepared to run for president in 1972 if the Cambodia invasion went badly. Then, when Spiro Agnew resigned in disgrace in 1973, Burger was on Nixon’s short list for VP, along with John Connolly, Ronald Reagan, and Nelson Rockefeller. Of course, the appointment went instead to Gerald Ford, who then succeeded Nixon as president. Had the choice gone otherwise, we could have ended up with President Warren Burger.
Nixon also nominated Lewis Powell, an aristocratic and genteel Virginian who had been the president of the American Bar Association. Powell turned Nixon down when he was first offered the Court in 1969 but accepted it when offered again in 1971. A corporate lawyer and member of the board of directors of tobacco giant Phillip Morris, he was a lifelong Democrat who loved to find “middle-ground” policy compromises regardless of what the law might say. Powell joined the majority in Roe v. Wade—as did Warren Burger—and the most notable opinion he authored was his controlling concurrence in Regents v. Bakke (still followed today) that upheld race-based affirmative action by public universities.
By far his best appointment, Nixon also nominated William Rehnquist (or “Renchberg,” as Nixon called him repeatedly in the Watergate tapes, misremembering the name of the very conservative lawyer then leading the Office of Legal Counsel in the Department of Justice). For years as an associate justice, Rehnquist earned the nickname “the Lone Ranger” because he dissented alone, over and over again, from decisions moving the Court further and further left.