« Verdict with Ted Cruz

Ep. 51 - One Seat to Win Them All

2020-09-22

With America already on the brink, will the battle over nominating the next Supreme Court justice put us over the edge? Senator Ted Cruz is perhaps the most qualified person in America to discuss the vacancy on the Court, the path to confirming President Trump’s nominee, and why the whole thing is so important. Plus, Michael Knowles asks the Senator to tell some of his favorite Justice Ginsburg stories.

This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
There was one thing they could have happened to make this twenty twenty one, cycle more tense? more diverse, more dangerous, and it happened Ruth Bader Ginsburg has died at the age of eighty seven. There is an open. On the Supreme Court. This is verdict with ten crews. Welcome back to vertical TED grows. I'm Michael knowledge joined by someone on President trumps short list for the brain Gort Senator Tag as senator crews, though I will see you again and again. You have expressed. You are not interested in the job. Well, that That's right, I'm not, but what I am very interested in and I'll tell you the reason. I'm not interested in the job is the fight we have in the Senate. The press and has said rightly that he's going to make his nomination this week, that's the right thing to do and I think its critical that the Senate confirm that justice,
for election day and in that's part of the reason why I dont want to serve on the court. It is right now. I got a job to do, which has led the fight to get that justice confirmed and I hope several or justices afterwards in the president's? Second, her so we ve already established your position, which happens to be my position, that absent, thirdly, the president should nominate a judge to fill this saint ab. Lay, the Senate should confirm that judge. But this is, I guess, controversial issue, because demo answer now pointing to twenty. Sixteen, when justice, Galicia Died- and Obama put up Merrick Garland as a potential Supreme Court nominee and then in current Senate majority, leader Mitch, Mcconnell said no way. We're not gonna have a hearing you're not going to get it in election year, grab? Senator are accusing us of hypocrisy. Well an end. I think it's important for people to understand this issue because it is easy to look back to twenty. Sixteen with merit, garland and all that, missions were reversed, so the report
guns were all saying. We're not gonna feel that seat. I said that the day justice, Scully passed away and then by the The Democrats we're all saying we must feel to say we must feel the seat. We must fill the sea and then four years later, everything is magically reversed and were applicants are saying we must build a seed and Democrats are saying under no circumstances. Can you feel the seed and and and the press is having a fee all day. Saying, of course, is the Republicans or hypocritical. Not the Democrats note nobody seems to have noticed Joe Biden and Hillary Clinton and Barack Obama and Chuck humor and Ray Bloody Democrat in the. U S. Senate has reverse, a hundred and eighty degrees, but but actually You understand the history I don't believe either side is being hypocritical. I think they're actually following the principles they believe in an end and so look summit. Could be forgiven for say and well what what's what's different? What what? What's? What does
Senate typically do. What is the present typically do an antenna out, there's an answer, so this is not the first time this has happened, in our nations history. This has happened twenty seven times before so seven times there has been a supreme what vacancy that has occurred during a prayer financial year and present have nominated a justice to fill that vacancy twenty seven times. Residents. Do it's actually an easy decision for president trumps decision by the way a total of forty where people have been presently united States have of them have faced this decision? Twenty two half blue service president have faced. Decision and every single one has nominated what is the Senate down and then- and this is where it's important understand- why twenty sixteen and twenty twenty are very very different. What this it is done, is very, very different.
Depending on whether the Senate is of the same party as the president or a different party from the press those are radically different soap. Of the twenty seven times there had been vacancies. Nineteen of them have a heard when the Senate is the same party as the the president. Of those nineteen, the Senate, confirmed seventy have guessed all nineteen, but seventy makes sense. Seventeen of the nineteen when there, when the president and the senator the same set of the same party, the Senate confirms them On the other hand, what about when their different parties? That's happened ten times and our nations history, that happened, merit Garland Barack Obama was a Democrat. There's a republican Senate. The ten times that's happened. The Senate has confirmed the nominee only twice so there's pattern that goes back two centuries
You know I gotta say something here: Michael, it's easy for people to say: will gosh will then it's just people being partisan. Well, there's or to it than that actually because under our institution elections matter under our constant in particular right now, if you think about it, in twenty, sixty Donald Trump ran on the kind justice he intended to nominate to replace Antidote Scully into replace any other. Stresses that the vacancies that occurred he was alive. That was a major reason he was elected. I was the biggest reason I voted for. Donald Trump over Hillary Clinton is the kind justice. Is he promised to appoint. On the other hand, Hillary Clinton, I miss denominate liberal activists and the american people voted against her like in the, U S Senate a big big reason, we have a republican majority in the senate- is that republican senators promise to confirm constitutional as judges to the court
and block liberal activist and in the american people elected Republicans to the Senate in twenty fourteen in sixteen and actually grew the republic majority and twenty eighteen and and and so when you All these reporters pulling their hair out and saying well cause you blocked President Obama's nominee, you have to block terms that just silly and its utterly Hey a historical and it's not consistent with history. The country, of course, witness charge of her paw receive seem sort of silly to me because we elect or politicians to exercise the political power they can and that will change by the circumstances. But I dont fault Brok, Obama report mere garland I dont fault management. I am all for not taking up their nomination. I dont want president. Or the senators in the jail for now pushing forward this nomination- and obviously I hope it goes through on that point senator since I am not in that exclusive club in Washington DC. Can you tell us why
is going on right now. What is the GNP? What what are they, be senators discussing. How is this process going play out where people are losing their minds? look at it and I'm concerned they eat. You mentioned the opened that show how tense thing Are we ve already seen? Unfortunately, violence in the street on very concern? It's gonna get worse. You're, saying Democrats threaten it Worse you're, saying liberal journalists threaten threatened, violence and- and I think that mechanic. Senators, r, r Chuck shoe has threatened these boomed. Everything is on the table, which, frankly, I don't think it's terribly consequential, because intended to be radical and extreme regardless. So they're still going to be radical in extreme if they win look. The big question is: where are the republican votes going to be? Every Democrat is going to bed now so there
three Republicans there. Forty seven Democrats, we know there. Forty seven knows I believe we will have the votes, and I believe it's important that we confirm this nominee before election day. To be honest, the math I dont think plays out all that differently from impeachment You and I spent a lot of time in verdict talking about impeachment. We at the time that the votes that were really in question, Collins and she's already made public comments. Such saying that she does not want to confirm a nominee before election day LISA Mc Caskey, who likewise is made public comments and then look the next votes that you look. Mitt, Romney, obviously voted to convict. The president of Ivan each man. I think a lot of people are wondering how MITS gonna vote. I don't know, hadn't said he's playing his cards pretty close to the best so we'll see, I think, even if
three of them ended up and up voting. No that still fifty fifty, which means the vice president breaks the tie. I dont think therefore votes now depends on the nominee. If, if something design stress happened with the nominee that could change the math, but assuming that the press nominate a serious credible Initial nomination. I think we'll have the to confirm the justice, and I think it is very important that we do before the election, and let me tell you why Joe I'd has been incredibly clear that that said, he and ten to challenge the results of this election if he done with awe he's hired a team of lawyers headed by veterans, in court, advocates to get ready to challenge the Electronic their wanted to outcomes on election day. Biden, winds, in which case the Democrats celebrating the media celebrates or of Biden, does, does
when I think the chances are one hundred percent, they go to court and challenge the result. We know that Hillary Clinton has to Joe Biden under no circumstances should you can see the select, no matter what. This weekend I did. The George Stephanopoulos Show and I made this point and I gotta say on and look I know George fairly well, I've done a show a number of times. This is the he got most agitated about. This is the point he jumped any significant, not only its trump, whose challenging the legitimacy election. What what nonsense and in its very weird, but that the democratic media, it's like a Friday and projection. They accuse the other side of doing what they're doing, given the the almost sure Don T that binds gonna be challenging the election.
If this seat is not filled by election day, we would have eight justices on the court if the Supreme Court deadlocks for four. It can't reach decisions, Equally, divided court has now thirty two decide anything and and understand the chaos of this. So some people say Kay fine. But what happens if you? If, if you dont, have a supreme court that could decide it well, I think, odds, are very high that we will see if Biden loses not just one law suit, or what contested election like we had in two thousand and Bush versus Gore and Florida. It multiple lawsuits Just one state being challenged, I think I'd and is likely to bring multiple cases all over the country and an enclosed state and We could end up with conflicting decisions from conflicting circuit court and if there is no Supreme Court, you can't of those conflicts and we could eat. We find ourselves in the midst of a constant,
National crisis, with this presidential election taking days and then weeks, and then months with no resolution and that that kind of chaos- I don't, leave Republican should allow to happen. I don't think we will, but, but I think this Exert are very high to Tipp to confirm the justice, but or election day, so there's a full nine justice Supreme Court in place. If and when there Alan just to the election this is a very persuasive argument that actually I haven't heard a ton of conservatives even talk about an obviously conservatives are more eager to fill the seat then lived. Those were left a star, but you you ve got this issue of possibly a bush. We Gore, you know twenty years later, but not in one state. Now you can have it in. I don't know three states, five states even more and and all the way up to the Supreme Court. Imagine of Bushmeat Gore had been an equally divided court. That would have been Kay
enough that that is really not something. To look forward to are very persuasive argument. You know a lot of this too. Now over whether or not to fill the seed come down to the personal wishes of justice, Ginsburg You have some Democrats now saying that it was worth bitter Ginsburg dying, wish that no Republican her seat and, of course, I don't. Know of any dying wish clause in the constitution, but we're Unless we, so have video of Justice Ginsburg saying now after the twenty sixteen election cycle, that the president absolutely must nominate a judge. Even in an election year that the president does not cease to be. The president, just cause. It is an election year, so we ve heard from her own mouth. This idea that we should go forward with the nomination we ve heard from some people. I suppose you knew her that She wouldn't wanted them to it occurs to me Senator you have met this Ginsburg on a number of occasions you ve or argued cases before the Supreme Court. Do you have any
personal insight into the justice, any personal reflections now that she is best well well sure, look I did no justice. Ginsburg personally my argued before her nine times she she was brilliant. Her personal story is, is remarkable. I mean she is born and grew up in New York City. She ended up going to core now went to Harvard law. School was one of the very first women ever to go to Harvard LAW School husband a job at a New York law firm and so she transferred from Harvard to Colombia. She graduated from Colombia LAW, school graduated, number one in the class. She was the Harvard LAW of issues on the Columbia larvae. And it's an amazing thing when she was coming out Colombia, law school. She applied. First reigned Supreme Court clerk, ship with justice, Felix Frankfurter renown, liberal justice, and he turned her down because she was a woman. He wouldn't hire a woman despite she had proof
sure from law school making the case for, but she got denied the clerk ship. She What had a hard time getting hired as a lawyer, and it's actually quite an amazing thing. Saturday Connor, who came out of Stanford LAW School. She was number three in the class, both them were offer jobs as legal secretaries. I you aren't you gonna talk about serious discrimination there you at or near the top of their class, and they can't get hired is first year, lawyers, Justice Ginsburg ended up becoming a professor and then becoming a Supreme court advocate- and she was actually one of one of the finest Supreme Court advocates to have ever lived. So when it comes to turn to raise an issue of equal justice before the law, Thurgood Marshall is, is really the pioneer of of arguing cases to expand, to fight She'll injustice, Ruth Paine Organs did the same thing when it comes to gender inequality
and she had a litigation strategy where she, challenge laws. That were designed to benefit women to give special benefits to women, but she challenge them. As being Inconsistent with the constitution's equal protection clause that the constant Can she would argue mandated that you treat men and women the same and she they pioneered a transformation in law that I gotta say, is as the father of two daughters. I'm I'm really proud that we have moved away from legal discrimination and an end and separate standard for men and women. An injustice Ginsburg as an advocate played a critical role in their hearing. This for personal account from you is is helping me to bolster my sort of personal alike of Justice Ginsburg because of course, very famously she was, friends with Antonyms Scalia and for a lotta conservatives. That's enough for us to say all she can't be all that bad, but I dearly
Most worries does does bolster. That is well well clean, Ginsburg really liked each other, and so it was interesting Scully. It was much closer, it again Ginsburg than say he was Clarence Thomas jurisprudence. Surely they were much closer. But personally- and it was almost it was almost an odd crumple friendship, Scalia was loud and boisterously. Brilliant I mean Scalia was, was an extraordinary person? Burke temper mentally was very quiet. Now she was very primitive properly. She had, the personality almost have a librarian, but she was brilliant and it was distinction Scully enjoyed opera together and they would go to operands and I Scully a major laugh. He was such an ambulance personality that that that she enjoyed him. You know when I was arguing in front of her questions were always careful. They were, size if she was a dangerous questioner, most
The big cases that I argued before her she voted against me, though. Interestingly enough, one of the bigger cases I I argued, was marrying versus Texas. Were Texas, stood up and fought the word court of the United Nations. President of the United States, and I are get at twice one five: four first time, six, three, the second time this time I won the five foreign who did Justice Ginsburg? She was the necessary fifth about that. If she had voted against the state of Texas, we want a lost. We lost Sandra O Connor, but we picked up just Ginsburg as our fifth vote, and that was very important for the court ultimate striking down the world cord and the president's overreach a power. I can tell you other Ginsburg story, witches one of the cases I argued before the court was the Texas redistricting case and you may remember that that about fifteen ago there was some news about justice, Ginsburg falling asleep at all
argument in it The papers all over the place. Well, here's a bit trivia, the law. Here at the podium when she fell asleep was me if you're getting it was the Texas redistricting case it was. It was an afternoon argument which is unusual. Normally arguments are in the morning. This argument was from one to three p m, double the length of a normal argument. And- and so I argued for fifty minutes and she put her head down and she was out for a good twenty minutes. I mean she was asleep and and at the time when I was teaching a class and Supreme Court litigation it at University, Texas LAW School, so I came back than the next. To my class in my students- were cracking up laughing, and this is made news that Ginsburg and fall asleep, and I thought I should look.
That's what I told my students, I said: listen, that's really! What every ad had aspires to rendered of your agenda unconscious though? The power of your arguments? Why joke there's a way you do it, which, which is you speak in a soporific tone, and you gently rock side by side and you just knock em right out an interesting, enough. In that case, Justice Ginsburg denied need to be awake to vote against me, she voted descent. Fortunately, I won the case five four, but she was on the dissenting side, one Ginsburg story I'll tell. When I started my career as a law clerk for chief Justice, William Renquist, the chief Light Justice Ginsburg, he thought she was a very careful lawyer and if there was a case whose legal outcome, the chief didn't alike, but he was in the majority in there were some instances where the votes on the court were with the law,
after the chief would be with a majority justice this burg was the that the Lib justice he most like to assign the opinion too, because she was away careful lawyer, and so if there is a particular issue that he may have not been thrilled with the legal outcome, he knew that she would just resolve that narrow issue before the court and wooden right this this and discipline, the opinion you know be interesting. Just a suitor who was on the court. If he had a majority opinion he could drop footnote that would wreak havoc a whole other areas of law right and an Ginsburg wouldn't do that. She would focus on the issues that so Ginsburg by far was the chief most like to assign it too if it It's going to be someone from from the left on the court. Will this to a mailbag question that that's came out to me and I beg you is to hear your thoughts on this is from Rogue millennia owl, who says
obviously so much of the debate over Justice, Ginsburg Old Seat and the filling the vacancy comes down to RO the way comes down to abortion and road millennial asks if a concern, majority Scotus considers returning. Roby Wade is the why your path to overturn it simply and turn a legislative power to the states or a day or would they seek to know for and to rule on the fourteenth amendment as protecting the unborn, regardless of state laws. So that's it. That's a very savvy question and in an and it's important to highlight what Rovers Way did because a lot of people don't know. I mean they know they ve heard of it as you know, has do with abortion, but they don't actually understand what Rovers way did The ROE versus Wade was decided. One thousand nine hundred and seventy three prior to ROE versus Wade Horsham was a state law matter and each state had different laws on abortion. Some states were quite permissive with some states were quite restrictive with it. What the Supreme Court did
Ro versus Wade is, is large. Took it out of the hands of the elected legislatures. So if role This is weighed, were overturned. It would, suddenly make abortion illegal. What it would do returned the decision to the states and what We would see, as a practical matter is different standards again state by state so right now in California. Nobody Thanks, there's any possibility. The California legislature would act to restrict abortion. That would True in a number of the blue states in other states, New York, California, in others, She would see far more sick Vacant limitations put in place and in it you know a virtue to that which, which is Supreme Court Justice, Louis Brandeis, talked about the fifty states as laboratories of Denmark. See what you would see is worship, laws that reflect the values of of this
thousands of each state and as you know, I've got a book coming out. One vote away. It's all about this. Frame cord and by the way else news just this week, which way we ve moved up the release of the book. By a week, it was coming out October, sex, it's coming out a week from today September, twenty ninth is called one vote away and It has an entire chapter on abortion and rovers weighed and partial birth abortion laws because one of the cases that that I litigated, represented the states as a Mickey as friends of the court, defend, the federal partial birth abortion law, so the federal law banning part birth abortion. The court upheld that five four where one vote away, if Joe Biden gets one more justice to replace one of the more conservative justices
We're one vote away from the Supreme Court, concluding that every limitation on abortion is unconstitutional that that part birth abortion is allowed, that no power. No consent. No prior notification. The taxpayer funding is made the Tory. You know we talked about. Challenges to elections and Bush versus Gore Score, entire chapter talking about Bush versus Gore and reserving democracy Bush versus Gore was five for had had there been only eight justices. That decision. Could a deadlocked. Eight eight state of lasting poor for rather and had happened. Instead, a lasting thirty six days, Bush verses Gore could have last lasted months and my some months, and so the book one vote away! Every chapter talks about a different constitutional right. You can pre order right now. The website is one vote away. Dot com could not be timely and people should certainly go out and go red
one vote away: an centering. You should probably get back to the capital and work on this issue of making sure that that vote go into the hands of a good constitutional list. Senator he was always in the meantime. I Michael knows this is verdict with TED groups.
Transcript generated on 2020-09-22.