Ted Cruz echoes what Randy Barnett and I explored in our Weekly Standard piece–that both President Bushes made their Supreme Court appointments based on what would be easier, and which candidates had shorter paper trails. Specifically. Bush 41 chose David Souter over Edith Jones because it would have been easier. Bush 43 chose Roberts over (Cruz’s boss) Michael Luttig because he had a short paper trail. Also, Bush 43 also originally chose Harriet Miers–who was endorsed by Harry Reid and Chuck Schumer–because he thought she would sail through confirmation.

Texas Sen. Ted Cruz distanced himself from his past support for Chief Justice John Roberts on Saturday, offering up an alternative history where Roberts — whom he once called a friend — was never appointed to the court.

“I want to focus on two moments in time that made a world of difference,” the Texas senator told a gathering of conservatives at Phyllis Schlafly’s Eagle Council convention in St. Louis on Saturday.

Cruz first focused on George H.W. Bush’s nomination of David Souter over Edith Jones to the Supreme Court before quickly turning his attention to Chief Justice John Roberts.

“Let’s fast forward to 2005,” stated Cruz. “In 2005, in one room was John Roberts and in another room was my former boss Mike Luttig, the rock conservative on the 4th Circuit Court of Appeals, and George W. Bush picked John Roberts.”

“Now in both instances, it wasn’t that they were looking for someone who wasn’t a conservative, it’s that it was easier. Neither Souter nor Roberts had said much of anything. They didn’t have a paper trail, they wouldn’t have a fight. Whereas if you actually nominate a conservative, then you gotta spend some political capital. Then you gotta fight.”

Cruz stated if Jones and Luttig had been on the court instead of Souter and Roberts, then the marriage laws in every state would still be on the books and Obamacare would not been law.

 

I hope the preference of picking Justices because they have short paper trails falls into desuetude.