Sen. Cruz Sets Record Straight on SCOTUS Precedent
History is clear: You have a president and the Senate of the same party, that nominees getting confirmed
September 25, 2020
WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas) this week before the Senate Judiciary Committee made the case for moving swiftly in the Senate to confirm a Supreme Court Justice, noting that Democrats’ calls to keep a vacant seat on the Court are inconsistent with two centuries of historical precedent, the Constitution, and the will of the American people. Excerpts of Sen. Cruz’s remarks are below.
ON THE DIFFERENCES BETWEEN 2016 AND TODAY
“Joe Biden unequivocally called for confirming the Supreme Court nominee, Hillary Clinton, unequivocally called for confirming the nominee. Chuck Schumer unequivocally called for it. Nancy Pelosi unequivocally called for it. Do your job. That was the slogan our Democratic colleagues had […] Now, suddenly, Senate Democrats are saying, don't do your job, don't do your job, don't do your job. […]
“Four years ago, the Republican majority declined to confirm the vacancy. This time around, we’re going to confirm the vacancy. What’s changed? They are markedly different circumstances and markedly different circumstances in a way that is constitutionally significant.”
ON TWO CENTURIES OF HISTORICAL PRECEDENT FOR THE PRESIDENT NOMINATING JUSTICES IN AN ELECTION YEAR
“The circumstance of a Supreme Court vacancy in a presidential election year is not unusual. In our nation’s history, we’ve had little over two centuries of experience as the United States of America, that situation has occurred 29 times. Twenty-nine times is a lot of times in the history of our country. What happens when a vacancy occurs during a presidential election year? Well, history shows us of those 29 times, presidents have made those Supreme Court nominations all 29. It’s absolutely clear. What does a president do if a president has a vacancy during a presidential election year? The president makes a nomination. […]
“By the way, of the 44 individuals who served as the president of the United States, 22 of them – half – have made nominations of Supreme Court justices for vacancies that occurred in a presidential election year. So this is commonplace. So all of the high outrage that the president would nominate someone is silly.”
ON TWO CENTURIES OF HISTORICAL PRECEDENT FOR THE SENATE CONFIRMING JUSTICES IN AN ELECTION YEAR
“If the president and the Senate are of the same party, the Senate confirms the nominee. And if the president and the Senate are of different parties for a vacancy during a presidential election year, the Senate does not confirm the nominee. What does history show us? Of the 29 times this has happened, 19 of them, the president and Senate were of the same party, 19 times. The Senate confirmed the nominee 17 of those times. History is clear: You have a president and the Senate of the same party, that nominee’s getting confirmed, assuming they’re qualified.”
“How about when the president and the Senate are of different parties? Well, that’s happened 10 times. And in those 10 times, the Senate has confirmed the nominee only twice – 2016, Barack Obama and Merrick Garland was one of those times.”
ON FULFILLING OUR PROMISES TO THE AMERICAN PEOPLE
“In 2016, Hillary Clinton promised to put on the bench liberal judicial activists who would embrace a left wing vision of the Constitution. Donald Trump promised to nominate justices in the mold of Scalia and Thomas. Those are very different choices. The American people chose President Trump. That election has consequence.
“But it’s not just the president’s election. The American people elected a Republican majority in the Senate. Not once, not twice, three times: in 2014, in 2016, in 2018 – the last election, [when] the American people grew our Republican majority in the Senate. […]
“In our elections, judicial nominations and judicial confirmations were front and center. When I was up in 2018, the people of Texas, one of the central reasons I asked them to elect me was to fight to confirm principled constitutionalists for the court. So when Senate Republicans in 2016 exercised constitutional advise and consent authority to say, ‘no, we will not confirm a nominee from the outgoing Democratic president,’ that was consistent with our promises to the people. And likewise, when we act now to confirm a constitutionalist justice, that is consistent with our promises to the voters and it is the voters who have put the president and the Senate majority in the position to make that choice.”
ON CONFIRMING A JUSTICE IN THE SENATE SWIFTLY
“History, again, is very much on the side of the Judiciary Committee, proceeding expeditiously – thoroughly, but expeditiously. Justice Ruth Bader Ginsburg was confirmed in 42 days. We have 40 days [until Election Day] right now. Justice Sandra Day O'Connor was confirmed in 33 days. Justice John Paul Stevens was confirmed in 19 days. By any measure, we have ample time for a full and careful consideration.”
ON THE NEED TO ACT BEFORE ELECTION DAY
“Senator Durbin said, ‘why act by Election Day? We don't need to act that quickly.’ In my view, it is imperative that we complete this process by Election Day, because we need a full complement of justices on the Court in the event there are election disputes.
“It has become a popular Democratic talking point, it has become a popular media talking point, that it is Trump who’s going to dispute the election. Let me say clearly and unequivocally, there will be a peaceful transition of power […] If Joe Biden wins the election, Joe Biden will be sworn in as president.
“But what I fear is the reaction of the extreme left if Joe Biden loses the election. We’ve already seen anger and rioting and burning and violence in the streets leading up to this election. We know that Hillary Clinton, who was the Democratic nominee last time around, has explicitly told Joe Biden: under no circumstances should you concede. That means if Biden loses, assuming he follows Hillary’s advice, he’s filing lawsuits, he’s challenging the legitimacy of the election. […]
“If we have eight justices on the Supreme Court and the Supreme Court divides four-four, a four four court can decide nothing. […] And the chaos we saw 20 years ago in Bush versus Gore of 36 days could extend weeks and months and keep this country in a constitutional crisis. We need a functioning Supreme Court. […] Regardless of who wins or loses, we need a Supreme Court to follow the law and ensure the Constitution is followed in this country. I’m confident this committee will take up that nominee and the Senate will confirm that nominee, as is our constitutional obligation.”
Now on President Trump’s short-list for potential Supreme Court nominees, Sen. Cruz began his lifelong fight to protect the Constitution as a clerk for Chief Justice William H. Rehnquist and went on to serve as the longest-serving solicitor general in Texas history. Before he was elected to represent 29 million Texans in the Senate, Sen. Cruz had argued in front of the Supreme Court nine times and authored more than 80 Supreme Court briefs.
In the Senate, Sen. Cruz has worked closely with the Trump administration in confirming principled constitutionalists to the Supreme Court and the federal bench. Sen. Cruz, along with Sen. Cornyn (R-Texas), also established the Federal Judicial Evaluation Committee (FJEC), a bipartisan panel of leading attorneys in Texas who have helped identify the most qualified candidates to fill judicial vacancies in Texas. The panel reviews applications, interviews candidates, and makes recommendations to the senators. Sens. Cruz and Cornyn then interview the candidates recommended by the panel before making their recommendations to the president. Out of over 200 judicial nominees confirmed since 2017, the Senate has confirmed 21 judges for the state of Texas.