by Ted Cruz
Kavanaugh had been a law clerk to Justice Kennedy, and the Washington rumor mill churned with the belief that Kennedy wanted Kavanaugh to replace him and that Kennedy agreed to retire only after the Trump White House made that promise. I don’t know for certain if those rumors are true, but they are certainly plausible.
Kavanaugh, like Roberts, has often sought to avoid controversy. It is no small irony, then, that his confirmation hearing was transformed into a brutal and vicious personal smear, driven by the Democrats.
Judge Kavanaugh was previously a senior staffer in the George W. Bush White House, and he was very much a D.C. insider. He’s smart, affable, and gregarious. Had Jeb Bush won the 2016 presidential nomination and become president, Brett Kavanaugh almost certainly would have been Jeb’s first nominee. Personally, I like Brett, but when President Trump nominated him after the urging of many longtime voices in Washington, I worried about the jurisprudential consequences.
So I raised serious concerns. My preference, which I urged energetically for both of Trump’s vacancies, was nominating Senator Mike Lee. Mike Lee, the senior senator from Utah, is my closest friend in the Senate. He’s brilliant and the son of Rex Lee, President Reagan’s legendary solicitor general who is considered one of the finest Supreme Court advocates ever to have lived. Mike was a law clerk for Justice Alito. He is a constitutional scholar who is a deeply committed conservative. Over and over again, he has stood for the Constitution and has endured relentless, pounding criticism for doing so. As I explained, I believe that is the single most important criterion for a Supreme Court justice.
Critically, Mike doesn’t give a damn what D.C. thinks of him. He doesn’t go to D.C. cocktail parties. That’s a very good test for Supreme Court nominees: whether they have any interest in (or tolerance for) going to D.C. cocktail parties.
With both vacancies, I urged President Trump and I urged Vice President Pence that the administration should nominate Mike Lee. Trump had promised to nominate justices “in the mold of Scalia and Thomas,” and Mike fit that bill perfectly. Of all of the potential choices, he was the one I was absolutely certain would remain faithful to the Constitution, no matter what. But Mike, in the 2016 presidential election had not supported Donald Trump, even after he was the nominee. And each time I pressed the case to the president and the vice president, that was deemed a disqualifying factor—even though, at my urging, Mike was one of the twenty-one names on the list of potential justices that then-candidate Trump had put out.
Shortly after Kavanaugh was nominated, Vice President Pence joined the Republican senators for our Tuesday lunch, as he often does. I pulled him aside and told him directly, “Mike, if, a decade from now, a 5–4 majority of the Court reaffirms Roe v. Wade, this week may well be the reason why.” I very much hope and pray that does not prove to be the case.
Kavanaugh’s nomination appeared to be headed for an easy confirmation until the now-infamous bombshell allegations from Dr. Christine Blasey Ford arose. Dr. Ford alleged that when she and Judge Kavanaugh were both in high school, at a drunken party, he had sexually assaulted her. These allegations had been privately raised months earlier in a letter to Senator Dianne Feinstein, the Democratic ranking member on the Senate Judiciary Committee. But Dr. Ford, at the time, asked that the allegations not be made public.
The Judiciary Committee has a mechanism for assessing allegations of this kind. The Committee can ask the FBI to conduct an investigation to ascertain what actually happened. The Committee also can meet in closed session to consider sensitive information or charges in a confidential setting. But Senator Feinstein did not ask for an FBI investigation—nor did she ask for a confidential hearing to consider these allegations. Instead, she sat on the allegations for months until the week before a high-profile Supreme Court confirmation vote, when suddenly Dr. Ford’s claims were leaked to the press.
Chaos erupted, and I believe the Senate Democrats callously took advantage of Dr. Ford and used her in a political effort to stop Judge Kavanaugh. Shortly after the allegations arose, all of the Senate Republicans on the Judiciary Committee met together in Mitch McConnell’s conference room. We discussed what to do. I urged my colleagues that we needed to have a public hearing, quickly, that Dr. Ford needed to be given a full and fair opportunity to present her allegations because the allegations were serious, and that Judge Kavanaugh, likewise, deserved a full and fair opportunity to defend himself.
Some of my colleagues were reluctant to hold a hearing. We had already had one confirmation hearing for Judge Kavanaugh. But I argued, along with several other members of the Committee, that the only way to resolve this issue and move forward with the confirmation was to allow the public to decide. When Clarence Thomas’s Supreme Court nomination likewise faced the explosive charges of sexual harassment from Anita Hill, it was the public hearings where Professor Hill and then-Judge Thomas both testified that allowed the American people to make their own assessment of the veracity of the charges.
Although today’s media and legal academy desperately want to erase this from the public record, at the time, polling showed roughly two-thirds of Americans believed Judge Thomas and did not find Professor Hill’s allegations to be credible. I urged my colleagues that if Judge Kavanaugh were to become Justice Kavanaugh, the American people likewise would have to have an opportunity to listen to and to see Dr. Ford and to listen to and to see Judge Kavanaugh address these allegations. Oftentimes, Republicans, as a political matter, are slow to make the decision that needs to be made, and we end up getting battered in the press and public opinion for days or weeks, only to reluctantly do what should have been done in the first place. I urged my colleagues, rather than endure the public beating, to announce the hearing now. It was the right thing to do, I argued, and it was also the only way to move forward with the nomination. My colleagues agreed.
Secondly, I urged my Judiciary Committee colleagues to bring in an outside counsel to question Dr. Ford. The Democrats’ political plan was not complicated to surmise. They planned to bring Dr. Ford before the Committee and, at the hearing, they hoped the questioning would feature Republican senators on the Committee—primarily old white men—sternly questioning an alleged sexual-assault victim. Had that transpired, the public reaction would have been swift and harsh. No Republican senator, I argued, wanted to vigorously cross-examine Dr. Ford—myself included. At that point, one of the more senior Republican senators volunteered, “I’ll do it,” to which several of us said, “uh, no thank you.” Instead, I argued, we should bring in an experienced prosecutor, a woman, to lead the examination. My colleagues once again agreed with me.
The Senate Judiciary Committee reached out to a number of respected female former prosecutors in the Washington, D.C., area. Even though they had been senior officials in Republican administrations and knew and respected Judge Kavanaugh as a person, they were unwilling to step into the maelstrom of political criticism that would be visited upon any lawyer taking that position. So, we hired an outside counsel, an experienced lawyer from Arizona, who had been recommended to the Committee. She did an able job.
During the course of the hearing, I and other members of the Judiciary Committee gave her extensive guidance as to how she should approach the questioning. My advice was, “Be incredibly gentle. Be respectful. Bend over backwards to treat Dr. Ford with the utmost respect.” Your job, I told her, is not to be Perry Mason. It’s not to deliver a withering cross-examination showing weaknesses or inconsistency in the testimony. Instead, your job is to gently elucidate her testimony and gently press where any inconsistencies might lie.
Given the choice between being aggressive or being respectful, I urged her, “Lean in the direction of respect.” She did so. She gently cross-examined Dr. Ford—so gently that, in the course of the hearing, several friends texted me asking, “What on earth is wrong with your lawyer? She’s not beating up the witness.” But that, of course, was not her job.
After Dr. Ford testified, Judge Kavanaugh cam
e next. With Judge Kavanaugh, I told our counsel, “You no longer need to be gentle. Lean into him. Ask difficult questions. Press on him. He’s a big boy, and he can take it.” She did so and pressed on his story. Judge Kavanaugh adamantly, passionately denied the allegations.
As the hearing progressed, Senate Democrats became more and more angry. They became steadily more vicious, attacking and smearing Judge Kavanaugh personally. They were frustrated, I believe, that their political plan of letting Republican senators stupidly attack an alleged sexual-assault victim had not materialized. Their frustrations spilled over into bitter and nasty personal attacks. At that point, our role in the hearing changed. We instructed our outside counsel, “You’ve done a good job. We can take it from here.” Countering partisan attacks from Democrats was something that Republicans on the Judiciary Committee felt more than capable of doing.
At that point, we took over in the hearing, engaging directly. I tried to systematically lay out the facts, pointing out how even though Senate Republicans had treated Dr. Ford with nothing but respect, Senate Democrats cynically responded without providing Judge Kavanaugh with a proper opportunity to defend himself. Instead, they (and the media) just presumed him guilty. I also pointed out how each of the three witnesses Dr. Ford referenced had stated on the record, under penalty of perjury, that they did not remember the incident that she alleged.
Perhaps the most memorable exchange of the hearing came from my colleague, Senator Lindsey Graham, who angrily exploded at the blatant hypocrisy of the Democrats. “What you want to do,” Lindsey bellowed at the Democrats sitting across the Judiciary Committee dais, “is to destroy this guy’s life, hold this seat open, and hope you win in 2020.” Not content to leave it there, he continued: “This is the most unethical sham since I’ve been in politics.”
My eighty-five-year-old mother, who is very conservative and had not previously thought highly of Lindsey Graham, immediately sent me a text: “Okay. I love Lindsey Graham.” In the hearing, I walked over and showed Lindsey the text, which caused him to laugh heartily.
Once the allegations came to light, the FBI conducted a supplemental investigation into Dr. Ford’s claims. They interviewed the witnesses identified by Dr. Ford and prepared detailed reports on the results of those interviews. I sat in the secure basement of the U.S. Capitol and read every page of that FBI investigation. Each of the alleged witnesses disagreed with Dr. Ford’s account. At the end of the day, the facts alleged by Dr. Ford sharply contradicted the facts alleged by Judge Kavanaugh. Both could not be true. In our legal system, when we have contradictory testimony, we regularly look to corroborating evidence—whether additional testimony or evidence can shed light on what actually occurred.
In this instance, none of the potential corroborating evidence supported Dr. Ford’s allegation, and all of the witnesses who had been identified contradicted the claims. Given that, I voted to confirm Judge Kavanaugh, as did a majority of my fellow senators. The experience of that confirmation hearing was no doubt searing and personal, and it was made all the more painful because Judge Kavanaugh and his wife have two young daughters. I’ve known Brett Kavanaugh for nearly twenty years, from the early days of the Bush administration. And I’ve known his wife Ashley (a native Texan) even longer, since our work together on the 2000 George W. Bush campaign. I consider them friends; both are good and honorable people, and it’s a travesty that their family was dragged through the mud the way they were.
What kind of Justice Brett Kavanaugh will be is a question that will take many years to assess. John Roberts has already become the new Sandra Day O’Connor, and some observers fear Kavanaugh may join him as the new Anthony Kennedy, together as the swing justices and arbiters in the middle of the Court. And, as the recent Title VII case illustrated—just as it would vary whether it was Kennedy or O’Connor siding with the liberals—it could also sometimes be Gorsuch doing so. It’s too early to make that conclusion, but time will tell. I fervently hope that’s not the case.
Both nominees will no doubt prove better than the nominees Hillary would have put on the Court. But, Republican presidents must do better than our record the past seventy years.
Going forward, there will be additional vacancies either for President Trump to fill or for the next Republican president to fill. The most important criteria that I believe should be applied is whether that individual (1) has a demonstrated proven record of being faithful to the Constitution and (2) has endured pounding criticism—has paid a price for holding that line. Had I been able to choose between Edith Jones and David Souter, I would readily have chosen Judge Jones. Had I been able to choose between John Roberts and Mike Luttig, I would have enthusiastically chosen Judge Luttig. Had I been able to choose between Brett Kavanaugh and Mike Lee, or Neil Gorsuch and Mike Lee, I would have unhesitatingly chosen Mike Lee.
All for the same reason. The stakes are too high—too many critical issues are hanging in the balance. Every single time, without exception, the Republicans nominate a justice who lacks a serious proven record of going through the crucible, that justice has proven a disappointment.
Clerks often emulate their justices. We need more former Scalia and Thomas clerks, and fewer Kennedy clerks. On Trump’s list of twenty-one, Fifth Circuit Judge Don Willett has a decade-long record as a fearless conservative (and he would be the only Evangelical Christian on the Court). Not on the list of twenty-one, Fifth Circuit Judge (and former Thomas clerk) Jim Ho likewise has amassed a very strong record, as has former U.S. solicitor general (and Scalia clerk) Noel Francisco (either of whom would be the first Asian-American on the Court).
Justices “in the mold of Scalia and Thomas” should mean just that.
In the world of Washington, there are always trusted insiders, graybeards who will tell a president, “I know so and so,” and even though their record doesn’t demonstrate it, “trust me,” deep down in their heart, they’re going to be conservative. History teaches us that those siren promises are always, always, always wrong. If a judicial nominee does not have a demonstrated proven record, if we cannot be confident he or she will withstand the praise and punishment, the carrot and stick of the press and the academy, then they should not be named to the Supreme Court. The stakes are simply too high. After all, we’re just one vote away.
ACKNOWLEDGEMENTS
Writing this book, my second, has been a joy. For nearly two decades, my professional life revolved around the Supreme Court, and it is an extraordinary institution. Living legends have walked those marble halls. The victories they have won for Justice and Rule of Law—and, at times, the damage they have inflicted on our Nation—have been incalculable.
I am grateful for all those who assisted in writing. Josh Hammer, a young lawyer and talented and rising opinion journalist, helped research and write the entire manuscript. I wrote much of the book during the coronavirus lockdown, and Josh and I spent hours and hours on the phone and on email going chapter by chapter. He did a superb job.
As always, I am immensely thankful for Heidi and our two daughters, Caroline and Catherine. They were on lockdown with me, all four of us together 24/7 in our house: Heidi working upstairs in her office, Caroline doing distance schooling to finish sixth grade in her bedroom, and Catherine finishing third grade at the kitchen table. They put up with me, ensconced in the living room, papers and legal briefs lying everywhere, writing day after day. I suspect they’d tell you they put up with a lot more than that.
And I appreciate the many people who helped review early drafts. Steve Chartan, Sam Cooper, Lauren Aronson, Andrew Davis, Omri Ceren, Jeff Roe, David Polyansky, Jason Johnson, and both my parents read parts or all of the book, and generously shared their insight and suggestions.
My book agent Keith Urbahn provided his predictably wise counsel, and my editor Paul Choix—and the entire team at Regnery—exercised a (thankfully) light touch, but they made the draft significantly better.
I’d like to say any errors in this book are Jeff Roe’s fa
ult. But, speaking more fairly, the responsibility for any mistakes is mine.
ABOUT THE AUTHOR
Author Photo by Gregory Woodman
TED CRUZ, a U.S. senator for the State of Texas, has dedicated his life to upholding the principles enshrined in our Constitution. After graduating from Harvard Law School, he clerked for Judge J. Michael Luttig and Chief Justice William Rehnquist and became the youngest and longest-serving solicitor general in Texas history. Senator Cruz and his wife, Heidi, live in his hometown of Houston with their two young daughters, Caroline and Catherine.
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INDEX
A note about the index: The pages referenced in this index refer to the page numbers in the print edition. Clicking on a page number will take you to the ebook location that corresponds to the beginning of that page in the print edition. For a comprehensive list of locations of any word or phrase, use your reading system’s search function.
A
Abbott, Greg, xxviii, 10–11, 14–17, 70, 131–33, 186, 189–90
Abington School District v. Schempp, 3
Abrams, Floyd, 121, 123
Adams, John, 4
Agnew, Spiro, 204
Alien and Sedition Acts, 124
Alito, Samuel, xxix, 39–40, 72, 104, 114, 116–17, 200, 215, 217, 220–23
American Civil Liberties Union (ACLU), 9, 21, 30, 123, 214
American dream, xxix, 28
American Revolution, 64, 114
amicus curiae briefs, 19, 44, 47, 51, 72, 102, 151, 158
Anti-Injunction Act, 217