by Ted Cruz
The year I clerked for him happened to be his twenty-fifth anniversary as a justice and his tenth as chief; at our annual dinner, all of the clerks (seventy-five in all) chipped in to get him three gifts, each of which was thereafter displayed in his office: a Lone Ranger adjustable doll, a full-size Indian headdress, and a ship captain’s wheel. The former reflected his tenacity in dissenting alone, year after year, and sticking to principle. The second memorialized his ascension to Chief. And the third symbolized how he had carefully steered the Court, building majorities and transforming many of those lone dissents—in criminal law, religious liberty, and federalism especially—into the law of the land.
Nixon also had two failed nominations: Clement Haynsworth and Harrold Carswell. Haynsworth, for a variety of reasons, was defeated by a bipartisan vote of 55–45, becoming the first Supreme Court nominee rejected by the Senate since 1930. Carswell was an appellate judge from Florida who had been a vocal defender of segregation. In 1948, he had given a shameful speech while running for office:
I believe the segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall always so act.… I yield to no man as a fellow candidate, or as a fellow citizen, in the firm, vigorous belief in the principles of white supremacy, and I shall always be so governed.
In addition to his atrocious record on civil rights, Carswell also happened to be a lousy judge. Responding to the charge that Carswell was “mediocre,” Senator Roman Hruska gave the following defense, which famously backfired: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”
The Senate rightly rejected Carswell’s nomination 51–45. (Years later, in 1976, Carswell was convicted of battery for sexual advances he made to an undercover police officer in a Tallahassee men’s room.)
After Haynsworth and Carswell were defeated, Nixon nominated Harry Blackmun, who would prove to be the worst justice he appointed. Blackmun, of course, became the author of Roe v. Wade and, over time, a staunch liberal. Blackmun and Burger had been best friends for decades, ever since grade-school, and Burger had lobbied Nixon to appoint his friend. In fact, Burger had been the best man at Blackmun’s wedding. They were dubbed the “Minnesota Twins.”
Blackmun had an undistinguished judicial record, before which he was the outside counsel for the Mayo Clinic. Quickly, he found himself overwhelmed by the responsibility of the Court. At first, he simply followed Burger wherever the Chief would lead. Over time, he grew bitter and resentful, not wanting to be overshadowed by the chief justice. Blackmun desperately sought praise, recognition, and adulation. And the firestorm he ignited (unwittingly, it appears) with Roe v. Wade changed him profoundly. Encountering criticism he had never faced before made him more and more angry. In response, he galloped steadily further to the left.
Next, Gerald Ford nominated John Paul Stevens. Although brilliant (he had earned the highest GPA in the history of Northwestern Law School and was himself a former Supreme Court clerk), Stevens had spent only five years as an unexceptional court of appeals judge with no discernible record of taking strong conservative positions. He was a Midwestern Republican, an antitrust lawyer, a leader in the bar, and he seemed a safe and easy choice. Suffice it to say that calculation proved to be a disaster, as Justice Stevens served for three and a half decades and became one of the liberal lions of the Supreme Court.
Even the great Ronald Reagan got half of his Supreme Court nominees wrong. As towering a conservative hero as Reagan was, of the four appointments he made, only two—William Rehnquist and Antonin Scalia—stayed faithful to their oaths. The first justice Reagan named, Sandra Day O’Connor, had been a state court of appeals judge in Arizona and, before that, an Arizona state legislator. Raised on a ranch, she was a Westerner through and through. Her autobiography describes how when Sandra Day brought young John O’Connor home to meet her family, her dad took John out on the ranch with him while he was castrating calves. “I wonder if Dad was trying to tell him something?” she mused.
Reagan had promised to nominate the first woman to be a Supreme Court justice and, with O’Connor, he delivered on that promise. She was friends with Chief Justice Burger (who lobbied hard for her nomination), and she had been law school classmates with William Rehnquist. Indeed, he had been first in the class, and she had been third in the class. I’ve often wondered: Whatever happened to the poor fellow who was ranked number two? Coincidentally, Rehnquist and O’Connor dated briefly while in law school, and he even proposed marriage (which she declined). By the time each was subsequently married, they and their spouses became close friends, all four socializing regularly for the rest of their lives.
That brief romantic history between them led to my most awkward moment clerking. It was 1996, and the Court was considering the first Internet porn case. At the time, the justices didn’t really know what the Internet was, so the Court librarians arranged to show them. They grouped the justices two at a time, and so Rehnquist and O’Connor (both septuagenarians), and their seven young clerks were all squeezed into a small, dark room together while the librarians showed the justices just how easy it was to find explicit pornography online. All of us clerks were exceedingly uncomfortable, but given that they had dated five decades earlier, I couldn’t help but wonder what both of them must have been thinking that day. Regardless, I still remember what Justice O’Connor said when the first graphic image appeared on the screen: “Oh my.…”
But in 1981, when Reagan appointed her, nothing in O’Connor’s record demonstrated a particularly conservative sensibility—a record of standing for the Constitution in the face of withering criticism. O’Connor would go on to become the quintessential swing justice, exquisitely subject to the “Greenhouse effect” and always trying to impose whatever outcome she personally thought was fair or right. Never mind what the law said.
After O’Connor, Reagan nominated Antonin Scalia. That nomination occurred when Chief Justice Burger retired from the bench. Reagan had two nominations to make at the same time. He elevated William Rehnquist from associate justice to chief justice, and he named Scalia to replace Rehnquist as an associate justice. My former boss and dear friend, Chuck Cooper (a former Rehnquist clerk), was a senior official in the Reagan Department of Justice at the time and a major proponent of both nominations; he has likened that day to a “double steal” in baseball. It was perhaps the single greatest advance for constitutionalist judging in the history of the Supreme Court.
A story I was told long ago, when I was clerking for Judge Luttig, captures a bit of Scalia’s brilliance, charm, and wit. Luttig was Scalia’s very first law clerk on the U.S. Court of Appeals for the D.C. Circuit. At the time, there were two conservative luminaries serving on the D.C. Circuit, Robert Bork and Antonin Scalia. Each had been a legendary academic. Each had staggering intellect and demonstrated courage of conviction. Everybody knew one of the two was likely to be Reagan’s next Supreme Court nominee. At the time, Reagan confidant Edwin Meese was serving as attorney general, and he had come to the D.C. Circuit courthouse to speak at an event.
U.S. marshals were holding an elevator in the parking garage when Scalia walked up with Judge Luttig, his law clerk in tow. The marshals stopped Judge Scalia, telling him, “I’m sorry sir, we’re holding this elevator for the attorney general of the United States.” Scalia pushed past them both, stepped into the elevator, jammed the button, and, as the door was closing, he said, “you tell Ed Meese… that Bob Bork doesn’t wait for anyone!”
And so it was. The very next nomination on the high court was Scalia’s, who was confirmed in the Senate by a margin of 98–0. It reflected a different time in judicial nominations: Rehnquist took most of the incoming fire, and Scalia—the first Italian-American justice in history—sat at the witness table during his confirmation hearing before the Senate Judiciary Committee, calmly smoking a pipe.
/> By the next year, 1987, Democrats had retaken the Senate, and Reagan got his third Supreme Court vacancy. He promptly nominated Robert Bork. Bork had the bad fortune of being nominated when Republicans no longer controlled a majority in the Senate. The confirmation hearing was a bloodbath, with Ted Kennedy leading the charge, savaging Bork and painting a frightening picture of what he described as “Robert Bork’s America.” Bork, at the time, had a scruffy goatee and mustache. I have often joked that if someone had just purchased Bork a razor, he would have been confirmed to the Court, because his scraggly beard made him look a bit frightening—even Mephistophelean—and the Democratic senators’ antics only played up that impression.
Bork’s nomination was defeated, and he earned a place in judicial immortality by having his name transformed into a verb. Even today, “borking” a nominee, as painfully experienced by Clarence Thomas and Brett Kavanaugh, is used to describe unfair, nasty, personal, partisan attacks and relentless mudslinging designed to destroy a judicial nominee. After Bork, Reagan tried again. Once more he went with a conservative judge from the D.C. Circuit, Doug Ginsburg. Although not the luminary that Scalia and Bork had been, based on his subsequent judicial service, Ginsburg would likely have proven a principled justice.
But the left had been aroused. Blood was in the water from the Bork saga, and the mob was not yet sated. This time they went after Ginsburg’s personal habits and, in particular, the poor judgment he had to smoke marijuana, both as a student and as an assistant professor at Harvard Law School. In that circus environment, the admitted charges of pot-smoking were sufficient to derail his nomination.
Reagan’s third attempt at that vacancy was then-Judge Anthony Kennedy, a judge on the Ninth Circuit Court of Appeals. A Californian, Kennedy was a lifelong Republican who was amiable and well-liked. His career on the Ninth Circuit had been undistinguished, and he had consistently avoided making rulings that risked subjecting himself to criticism. Conservatives in the Reagan administration fought hard for a stronger nominee, but after the debacles of Bork and Ginsburg, conservatives had spent all their capital within the administration. Kennedy was seen as an easy way out and, indeed, he proved to be that, being confirmed in the Senate by a margin of 97–0.
Shortly thereafter, Justice Kennedy received a note from Harry Blackmun that read, “Welcome to the good old number three club.” Blackmun, like Kennedy, had been a president’s third choice for a vacancy after the first two nominations had failed. I have to say, the “good old number three club” has not served the Constitution or the American people very well. Kennedy proved exquisitely sensitive to public criticism, deeply swayed by the admiration of D.C. society, the legal academy, and the press. And for three decades, Kennedy enjoyed his role right at the center of the Court’s high-profile legal and cultural battles.
When O’Connor served alongside Kennedy, the two of them would vie for who could be the most consequential swing justice. Consistently, there was a bloc of three conservatives: Rehnquist, Scalia, and Thomas. And there was a bloc of four reliable liberals, with Kennedy and O’Connor sitting serenely in the middle. If the left could attract just one of them, they got to five and prevailed in a given case.
That’s the reason, I believe, that the Court’s docket dropped dramatically. In the 60s and 70s, with a reliable left-wing majority, the Court regularly took more than 100 cases a term. By 1981, that total rose to over 200. But, in more recent decades—with swing votes blowing in the wind—in too many cases neither liberals nor conservatives were confident where five votes would land. Avoiding cases was the more risk-averse path to take, and so the typical docket dropped to about 80 cases a year. But, if we get again a predictable, reliable majority—either liberal or conservative—I think it’s likely we’ll again see north of 100 cases each year decided at the Court.
On some issues, O’Connor was strong and Kennedy more wobbly; on others, Kennedy held firm while O’Connor blew with the wind. Between the two of them, outcomes were always uncertain. When O’Connor retired, Kennedy enjoyed over twelve years as the lone swing justice. I remember that as law clerks we joked that for criminal cases at the Court, they were decided by the “Greg test.” You see, Justice Kennedy has a son named Greg. And if the case was a case where Kennedy could possibly imagine his son might get into particular trouble under the facts of the case, then Kennedy was going to rule for the criminal defendant. But, if the case was something truly horrific, an axe murder or the like, Kennedy knew Greg could never commit such crimes and so was a much more reliable vote for the prosecution. (The test wasn’t perfect, as we saw in an earlier chapter, since at times Kennedy was perfectly capable of siding with vicious child rapists, which went far beyond the mild standards of the “Greg test.”)
After Reagan came George Herbert Walker Bush. Bush had two nominees to the Supreme Court: Clarence Thomas—who has been extraordinary, ferociously principled, and profoundly consequential—and David Souter, who during his time on the Court traveled from being mildly conservative to becoming the leader of the left wing on the Court.
Souter had served on the New Hampshire Supreme Court and was a Harvard graduate and a Rhodes Scholar. He has high intellect, but nothing in his judicial record demonstrated even a whit of conservative instincts. He had just been appointed and confirmed to the U.S. Court of Appeals for the First Circuit, where he had spent mere weeks before being considered for the Supreme Court.
This nomination was to fill the seat vacated by William Brennan, and at the end of the process, two judges were brought in to interview with President George H. W. Bush: Souter and Edith Jones, a judge from the U.S. Court of Appeals for the Fifth Circuit. Judge Jones was everything Souter was not. She had demonstrated a proven record, had upheld the Constitution, had followed the law, and she had endured brutal press vilification for daring to do so. Yet she remained fearless, principled, and unbowed.
President Bush was risk averse, and New Hampshire Senator Warren Rudman energetically vouched for Souter. Although not a conservative, Rudman told Bush” in effect, wink-wink, nudge-nudge, “even though there is zero paper trail, and there is nothing in the course of his life to prove that David Souter is conservative, trust us, he’ll be great.”
Nothing better captures the Republican disaster of Supreme Court nominations than that episode. Let me suggest something: If you have lived fifty years of your life and there is nothing whatsoever in anything you have said, written, or done to demonstrate you’re a conservative… then you’re not. And if by some bizarre miracle, you happen to be, perhaps the Supreme Court of the United States is not the best place for the world to find out.
The Bush White House wanted to avoid controversy, and confirming Edith Jones would have required a fight. Judge Jones actually stood for something—she stood for the rule of law—so nominating her would have cost political capital. So they went with Souter instead.
I remember when I was clerking, there was a tradition at the Court where each of the justices would typically have lunch one day during the term with the clerks from each of the other chambers. It was wonderful tradition, and one I thoroughly enjoyed.
The one justice who refused to participate was (retired) Justice Byron White. He was an extraordinary figure, a legendary athlete and Rhodes Scholar who had been the runner-up for the Heisman Trophy and then led the NFL in rushing in 1938 (as a twenty-one-year-old rookie) and again in 1940—while simultaneously ranking first in his class at Yale Law School. That is a feat that was never replicated before or since (to put it mildly).
White left the NFL to serve in the Navy in World War II, and when Patrol Torpedo boat 109 (PT-109) sunk in the Pacific after colliding with Japanese destroyer Amagiri, Lieutenant Commander White wrote the intelligence report that transformed Lieutenant (Junior Grade) John F. Kennedy into a war hero. Two decades later, White became President Kennedy’s only appointment to the Court.
Although I wasn’t a fan of his jurisprudence, I would have loved to have had lunch with Byron
White. But he never forgave the law clerks and justices who spread internal gossip and the details of the Court’s decision-making to Bob Woodward in his classic insider book, The Brethren, and as a result, Justice White resolved not to have lunch with clerks from any other chamber. In prior decades, his games on the Supreme Court basketball court—the highest court in the land—were legendary: a college football hall-of-fame great, with hands seemingly carved from stone, he man-handled pencil-necked law clerks in the paint. Nothing he did (no matter how rough) was ever a foul, but if you so much as touched his arm, he’d call it. Alas, by the time I was clerking, White had retired from basketball, so sadly I didn’t get the chance to have lunch or play hoops with him.
I’m thankful all the other justices continued the lunch tradition, and I recall having lunch in Justice Souter’s chambers. He told us that each day for lunch he had a small bowl of plain yogurt and an entire apple (core and all). On the weekends, he added fruit to his yogurt. I remember sitting back and finding it curious that Souter apparently liked yogurt better with fruit, but he was enough of an ascetic to deny himself that pleasure five days of the week.
A lifelong bachelor and a slim, reserved man, Justice Souter had primarily known the rural world of New Hampshire. At lunch, he described his time on the New Hampshire Supreme Court, which was his only significant judicial experience prior to his nomination to the Court. In particular, he explained how the complicated and important constitutional questions often before the U.S. Supreme Court never made it to the New Hampshire Supreme Court. Instead, he joked that their cases would “often involve a car that had hit a cow.”