Toobin on Cruz

June 23rd, 2014

Jeff Toobin has a fairly neutral profile of Ted Cruz, tracing his history from birth to Princeton to HLS to clerkship with the Chief Justice to litigator to SG to Senator. Here are some of the highlights.

Cruz at HLS:

“He came to class with his right hand in the air and he kept it in the air for the whole semester,” Alan Dershowitz, who taught Cruz’s criminal-law class, told me. Cruz and Panton sat next to each other, and both disagreed with most of what Dershowitz said throughout the semester. “They were pro death penalty, they questioned the exclusionary rule, and they were both completely brilliant.” (Panton became the second black president of the Harvard Law Review, after Barack Obama. He now works in private equity, in Atlanta.) 


At Harvard, Cruz’s ambitions came into focus. “He was going to clerk for Michael Luttig, on the Fourth Circuit, who was the big feeder for the conservative Justices on the Supreme Court, and then clerk on the Court,” Dershowitz said. “And of course that’s exactly what he did.”

From 1996 to 1997, Cruz clerked for Chief Justice William H. Rehnquist, and again he impressed both ideological allies and adversaries with his intelligence and persuasiveness. “We became friends on the first day of our clerkships,” Neal Katyal, who clerked for Stephen Breyer and went on to become Acting Solicitor General in the Obama Administration, said. “We spent the next year arguing about just about everything, especially the death penalty, which Ted definitely supported. He was conservative, of course, but he was not an ideologue. He knew how to make arguments based on the law. He was obviously already a very good lawyer.”

At Cooper & Carvin:

After his clerkships, Cruz faced the first genuine crossroads of his career. Until then, he had followed an élite path from the Ivy League to coveted clerkships. Now he had to decide what kind of lawyer he was going to be. Cruz turned down an offer from a big firm (with a big signing bonus) and joined a boutique firm then known as Cooper & Carvin, in Washington.

“When I was clerking for the Chief, Chuck Cooper and Mike Carvin came and recruited me,” Cruz told me. Cooper was a former Rehnquist clerk. At the time, the firm was nine months old and had only six lawyers. Cruz was the first new associate the partners recruited. Cooper and Carvin had served in senior roles in the Reagan Justice Department, and they created a firm that combined their passion for high-level litigation with conservative politics. Cooper has long been the outside counsel to the National Rifle Association, and, he recalled, “Ted was basically my lieutenant on all N.R.A. matters.” He helped Cooper prepare his testimony before the House Judiciary Committee in favor of the impeachment of Bill Clinton. Cruz also worked on Representative John Boehner’s civil lawsuit against Representative Jim McDermott, a Democrat, for illegally leaking the recording of a phone call involving Newt Gingrich. (Boehner won the case, and McDermott was forced to pay damages, including more than a million dollars of Boehner’s legal fees.) Carvin, who has since moved on to another firm, said, “Ted was the best law partner I ever had, but he was a junior associate.” Soon enough, though, it became clear that Cruz’s ambitions extended beyond success as a private lawyer. “Ted had this obvious burning interest in matters of important public policy,” Cooper recalled. “He had the obvious tools to succeed at the highest levels of politics. It was clear to me that it was at least in the back of his mind, and I encouraged it.”

GWB campaign:

And so, in 1999, Cruz went to work as a domestic-policy adviser on the George W. Bush Presidential campaign. “I essentially had responsibility for all the policy that touched on law,” Cruz told me. “So we all divided up the issues, but anything law-related fell under my bailiwick. The campaign was a year and a half of incredibly intense eighteen-to-twenty-hour days. The best part of the campaign was I met my wife. We were one of eight marriages that came out of the campaign, so I tell young people, ‘If you want to meet your spouse, go join a political campaign.’ ” (Heidi Cruz lives in Houston with their daughters.)

Election 2000 in Florida:

When the result of the 2000 campaign devolved into a legal struggle over the vote in Florida, Cruz was well situated to play an important role. By the Thursday after Election Day, he was in Tallahassee. “Through an odd bit of serendipity, it happened that I was the only practicing lawyer, and, in particular, constitutional litigator, who had been on the full-time campaign team,” Cruz told me. “One of the realities of the recount and life is that lawyers and political folks don’t really speak the same language. By the accident of being in that place I found myself, there was sort of a small leadership team that consisted of Jim Baker and Josh Bolten and Ted Olson and George Terwilliger and Ben Ginsberg and me. And I’m twenty-nine years old, this kid, and all of these other folks are Cabinet members and masters of the universe.” Ginsberg, the national counsel to the Bush campaign, and his associates set up seven teams of lawyers to address the sprawling controversies generated by the recount, and Cruz was the only lawyer who served on all seven. His job was to encourage communication and assure consistent positions.

“I’ve been amused at some of the subsequent descriptions of Bush versus Gore, because they sort of described us as this fine-oiled machine with a careful strategy,” Cruz said. “It was one tiny notch slightly below utter chaos.”

With a John G. Roberts cameo:

Cruz’s initial assignment was to assemble a legal team. His first call was to his former mentor Carvin, who wound up representing Bush before the Florida Supreme Court. Cruz’s second call was to a Washington lawyer named John Roberts. “John had been a friend and a Rehnquist clerk—I’ve known John a long time,” Cruz said. “Everyone we called, without exception, dropped everything and came down. And for a young lawyer, I mean, it was a breathtaking and humbling experience to get the chance to carry the bag and work alongside some of the most talented lawyers in the country.”

On becoming Texas SG:

Though Cruz was only thirty-two, he persuaded Abbott that he was up to the job. In 2003, he moved to Austin. “We wanted Ted to take a leadership role in the United States in articulating a vision of strict construction. I look for employees with batteries included,” Abbott said. “Ted was supercharged and ready to go.” In effect, he asked Cruz to roam the country in search of cases that might advance the Constitutional agenda that Cruz had first embraced as a teen-ager. Sometimes Texas was an actual party to the cases Cruz argued, and sometimes he simply volunteered to write friend-of-the-court briefs for causes that he and Abbott supported. They intervened in cases supporting gun-owners’ rights, states’ rights, and the right to religious expression in public places. In one high-profile case, Cruz wrote the brief that persuaded the court to approve a monument of the Ten Commandments outside the state capitol, in Austin. (Abbott argued that case.)

Ted Cruz explains how to frame Medellin v. Texas to Justice Kennedy:

“So let’s take Medellín as an example of that,” Cruz went on. “The other side’s narrative in Medellín was very simple and easy to understand. ‘Can the state of Texas flout U.S. treaty obligations, international law, the President of the United States, and the world? And, by the way, you know how those Texans are about the death penalty anyway!’ That’s their narrative. That’s what the case is about. When Justice Kennedy comes home and he tells his grandson, ‘This case is about whether a state can ignore U.S. treaty obligations,’ we lose.

“So I spent a lot of time thinking about, What’s a different narrative to explain this case? Because, as you know, just about every observer in the media and in the academy thought we didn’t have a prayer. This is a hopeless case.”

Cruz decided to change the narrative into one about the separation of powers. He refashioned the case from a fight between Texas and the United States to one between the executive branch and the legislative branch of the federal government, with Texas advocating for Congress. He argued that the President could not order Texas to reopen the cases without the specific authorization of Congress.

On Cruz’s decision to run for Senate:

ruz stepped down as solicitor general and joined a law firm in Houston. In short order, another opportunity presented itself: Kay Bailey Hutchison was retiring from the U.S. Senate, opening up a seat in the 2012 election.

Cruz flew to Washington for a conference of the Federalist Society for Law and Public Policy Studies. There he arranged to meet with Mike Lee, a newly elected senator from Utah. The two had much in common. Both were former Supreme Court clerks and both had an intense interest in constitutional law. (The son of Rex Lee, who was Solicitor General in the Reagan Administration, Mike Lee clerked for Samuel Alito during his first year on the Court.) “At that point, I felt like I had already known Ted, because three of my co-clerks were Princeton undergrads, and he was a legendary debater,” Lee recalled. Cruz and Lee hit it off. “He and I see a lot of things the same way, through a similar lens. As someone who has studied the Constitution throughout his entire life, he understands the importance of federalism and separation of powers. As a former Supreme Court clerk and appellate litigator, he is very aware of how the courts look at things. But he also knows that we can’t leave every constitutional question to the courts. The legislative branch has to follow the Constitution, too.” The two men took a long walk around the Capitol grounds. By the end, Lee had agreed to endorse Cruz for the Senate.

Toobin next turns to Cruz’s affiliation with the Federalist Society. Here Jeff drops his fairly neutral tone throughout, and says stuff that simply isn’t true about FedSoc. But whatever.

On another early trip as a senator-elect, Cruz made a speech to the Federalist Society, to which he has since returned several times. Founded in 1982, the society is a forum for discussion of conservative legal ideas. It takes no formal positions on issues, and members don’t agree with each other on every topic, but it has long operated as the network for potential Republican judicial nominees and executive-branch officials. In practice, the Federalist approach has meant an “originalist” view of the Constitution, which, in turn, reflects the priorities of the modern Republican Party—including an expansive view of an individual’s right to bear arms under the Second Amendment, a rejection of constitutional protections for a woman’s right to choose to have an abortion, a porous barrier between church and state, and a narrow conception of the power of the federal government to intervene in the economy. Dozens of judges have brought a Federalist orientation to the bench in recent years; Cruz is the first politician, and the first prospective President, to put their ideas at the center of national debate. “Like many people in this room, I’ve grown up with the Federalist Society,” he said soon after he arrived in Washington. “This has been my home for my entire adult life, my entire professional life.” It was at a later Federalist Society dinner that Cruz was inspired to write a series of reports on what he found to be abuses of power by the Obama Administration. The idea came from another prominent conservative lawyer, Justice Samuel Alito, who was the speaker that evening.

And Walter Dellinger compares Ted Cruz to John C. Calhoun. Charming.

Cruz’s facility with constitutional argument draws admiration even from those who do not share his views. “Ted is able to use erudite constitutional analysis with politically appealing slogans—that’s a rare talent,” Walter Dellinger, the former acting Solicitor General in the Clinton Administration, who has debated Cruz, told me. “The only problem is that Ted’s view of the Constitution—based on states’ rights and a narrow scope of federal power—was rejected at the Constitutional Convention in Philadelphia, and then was resurrected by John C. Calhoun, and the Confederates during the Civil War, when it failed again. It’s still around now. I think it’s wrong, but Ted does a very sophisticated version of that view.”