By: Daniel John Sobieski
When President Trump recently added Texas Republican Sen. Ted Cruz to his shortlist for Supreme Court nominees, he did not know it would be shortly before fate presented him in the passing of the virulently anti-Trump Ruth Bader Ginsburg with the opportunity to fill a third SCOTUS seat just in his first term. Cruz, ironically, is a perfect candidate for the court – an originalist and movement conservative who has argued before the Supreme Court, served as Texas attorney general and, as a senator, knows the confirmation process and associate political games all too well.
Sen. Cruz also knows exactly why Trump should nominate a replacement for the arch-liberal and anti-originalist Ruth Bader Ginsburg now and get that nominee confirmed before the November election. The Democrats are planning to steal the election with floods of phony mail-in ballots, legal challenges, and recounts upon recounts. Whatever the vote on November 3rd, this will be a contested election and like Gore versus Bush in 2000, SCOTUS may ultimately decide things. Wouldn’t it be better to meet this constitutional crisis with a third Trump-appointed justice on the Supreme Court rather than the 4-4 invitation to disaster that exists now? As PJMedia reports:
Republican Senator Ted Cruz says President Donald Trump needs to nominate a successor to Supreme Court Justice Ruth Bader Ginsburg next week, and that the Senate should confirm that choice or the country risks a constitutional crisis.
“I believe that the president should, next week, nominate a successor to the court. I think it is critical that the Senate takes up and confirms that successor before Election Day,” Senator Cruz told Sean Hannity on Fox News.
“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court.”
Cruz continued, “A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.”…
The president should nominate a principled constitutionalist with a proven record and the Senate … should do our job and protect the country from the constitutional crisis that could result otherwise.”
Some pundits opine that we should wait and let the people pick the President who will pick Ginsburg’s replacement, but, as noted, this will be an election that the next SCOTUS pick may decide. It may very well be the Justice who picks the President and not the other way around. The people have already voted for Trump and a Republican Senate to make this very choice on this very day. What’s to wait for? When Democrats take power they use it. So should Republicans if they are serious about righting the ship and draining the swamp.
What about Merrick Garland, Democrats whine? I say forget about customs and traditions and Senate smoke and mirrors all designed to help liberal Democrats and their nominees and crush constitutional originalists. They are rooted in hypocrisy. Presidents should nominate, and the Senate should confirm or block, justices when they have the power to do so, power already given them by the people. Blocking Merrick Garland was a righteous exercise of political power given to a Republican Senate. The Senate hs the power to advise or consent but they don’t have to do either. It is constitutional for them to sit on their hands. That’s called not consenting.
Judge Merrick Garland was as real a judicial threat to the Second Amendment both Trump and Cruz hold dear as it gets. Ted Cruz warns as part of his stump speech that we are one Supreme Court Justice away from losing our Second Amendment Right to keep and bear arms. President Obama nominated for the Supreme Court vacancy created by the passing of Justice Antonin Scalia just such an individual – Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, a Bill Clinton appointee. As Carrie Severino, chief counsel for the Judicial Crisis Network, which mounted an ad campaign against Garland’s confirmation, noted in National Review:
… Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.
Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement.
Scalia had told Chris Wallace on Fox News that he would not like to see his replacement be someone who would undo everything he had accomplished and worked for. President Obam dishonored his memory and put our Second Amendment right to keep and bear arms in the crosshairs by nominating just such a person.
Sen. Cruz, who warned of a nomination like Garland’s was a prime mover in getting Heller, in which Scalia wrote the majority opinion, before the Supreme Court and which decided in favor of gun rights, ruling that the right to keep and bear arms was an individual right and that the word “militia,” as the Founders intended, meant the “whole people” of the United States. If Heller had gone the other way, our gun rights would have been thrown on the ash heap of history. As Cruz told CNN:
I represented 31 states in the Heller case, which upheld the individual right to keep and bear arms. You know what Barack Obama’s position is? That there is no individual right to keep and bear arms whatsoever under the Constitution. … Hillary Clinton, for example, has said she will put Supreme Court justices on the court who will overturn Heller. And if Heller is overturned … there were four justices who said that there is no individual right to keep and bear arms whatsoever, that it is only a collective right in the militia, which is fancy lawyer talk for a nonexistent right. … [If] Hillary Clinton gets one more Supreme Court justice, what it would mean is, the Supreme Court would say you and I and every individual American have no constitutional right under the Second Amendment at all, and either the federal government or a state government could make it a crime to possess a firearm.
Together Antonin Scalia and Ted Cruz saved the Second Amendment. That alone should warrant a Cruz Supreme Court appointment, Well, Ted, if you want to put strict constitutionalist judges on the Supreme Court who would restore the original intent of the Founding Fathers, who would be a better pick than yourself?
Trump warned during the campaign that the Second Amendment was under attack and there was no better defender of the Second Amendment than Ted Cruz. He would be a worthy replacement for the late Justice Scalia, with whom Ted Cruz helped save the Second Amendment in the momentous Heller decision. In a statement on Scalia’s passing, Cruz stated:
“As liberals and conservatives alike would agree, through his powerful and persuasive opinions, Justice Scalia fundamentally changed how courts interpret the Constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism. And he authored some of the most important decisions ever, including District of Columbia v. Heller, which recognized our fundamental right under the Second Amendment to keep and bear arms. He was an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights. All liberty-loving Americans should be in mourning.
Before endorsing Trump, and perhaps one of the reasons aside from SCOTUS picks, Cruz received support from Trump in fighting the Obama administration’s Internet giveaway that removed it from U.S. control. They are more in agreement than some commentators think. As Politico reported:
Donald Trump’s campaign Wednesday criticized the Obama administration’s plan to hand oversight of the internet’s domain name system to an international body, echoing Sen. Ted Cruz’s argument that it could lead to more censorship by countries like Russia and China.
“The U.S. should not turn control of the Internet over to the United Nations and the international community. President Obama intends to do so on his own authority — just 10 days from now, on October 1st, unless Congress acts quickly to stop him,” Trump’s national policy director, Stephen Miller, said in a statement published on the campaign’s website….
Cruz, who has famously refused to endorse Trump’s candidacy, thanked the GOP nominee in a tweet: “Appreciate @realDonaldTrump’s support of our efforts to stop Obama’s Internet handover & keep the #Internet free.”
When Justice Sonia Sotomayor criticized Trump appointees Neil Gorsuch and Brett Kavanaugh for acting like “Trump judges” in their decisions, Ted Cruz ripped her to shreds, pointing out that thanks to President Trump, who realized the Supreme Court was and still is a political arena, at least for those who confirm SCOTUS picks, the appointments of Gorsuch and Kavanaugh have shifted SCOTUS back in an originalist direction. Are they “Trump” justices per se? Perhaps not, but they share his views on the role and limitations of the Supreme Court.
It took Cruz just two minutes during the hearing to reduce Sotomayor’s protest to a pile of politically motivated babble:
If you look at the facts of what’s happening with nationwide injunctions, I think it will explain why the DOJ has had to ask the Supreme Court to intervene over and over and over again.
Nearly one-third of the nationwide injunctions issued against the Trump Administration have come from courts in the state of California. Two-thirds of the states, their district courts have issued a total of zero nationwide injunctions. So you have a handful of courts that are driving this problem.
Cruz then offered Sotomayor the facts showing how judges have been enlisted in the anti-Trump “resistance” to thwart the will of the American people:
“In the eight years of the George W. Bush administration, district courts issued a total of 12 universal injunctions against the Bush administration,” he said. “In the eight years of the Obama administration, district courts issued 19 universal injunctions against the Obama administration. In just three years of the Trump administration, we have already had 55 national universal injunctions issued against the federal government.”
That breaks down to 1.5 injunctions per year under Bush, 2.4 injunctions per year under Obama, and 18.3 injunctions per year under Trump. And liberals like Sotomayor like to lecture us on “disparate outcomes.” How’s that, Justice Sotomayor, for equal treatment under the law?
Look in the mirror, Ted, for that principled constitutionalist. There are those who suggest Cruz would turn down a SCOTUS offer and that in any event, he might have a tough time getting confirmed by fellow senators whose toes he has stepped on. But if he is as unpopular as they say, they just might want to elevate him out of the Senate. Cruz, the argument goes, may not want to be just 1 of 9, but right now he is just 1 of 100. Would he pass up a chance to safeguard the Constitution or a generation or more in favor of having his bills die in committee? I think not. Would the United States and the Constitution be better off with a Justice Cruz? I think so.
* Daniel John Sobieski is a former editorial writer for Investors Business Dail whose pieces have also appeared in Human Events, Reason Magazine and the Chicago Sun-Times among other publications.