Highlights from Ted Cruz’s New Book About Harvard Law School, #SCOTUS, and the Texas SG

July 1st, 2015

Earlier this week I blogged about Ted Cruz’s experience watching porn with Chief Justice Rehnquist and Justice O’Connor. I’ve now bought a copy of his book, and will highlight some stories salient to legal circles–mostly about his time at HLS and SCOTUS. Long post after the jump.

On Charles Donahue:

My first class in law school was on the subject of property law, and was taught by Professor Charles Donahue. He was a liberal academic straight out of central casting— he had a long beard and wore Birkenstocks. He looked something like a lumberjack who’d found his way to Berkeley. And he was, in fact, a wonderful teacher.

On Dersh:

To Dersh, the worst thing a student could say to back up his point was “Well, I just feel that . . .” Dershowitz pounced on such words. “Oh, you feel, do you?!” he’d ask. “You’re emoting?! I thought you were in law school.” He wanted logic, argument, substance.

Ted was not a gunner, except for Dersh’s class when eh picked on CT or AS:

In most of my classes I consciously tried to be relatively quiet. I had no desire to be a “gunner”— one of those students who shot his hands up constantly in class and fell in love with the sound of his own voice. To try to prevent that, I deliberately rationed myself to talking just once a week in my classes. That practice in itself turned out to be an interesting exercise, with a positive effect. Restricting what you say forces you to be selective, which tends to make your comments smarter and your points sharper. But I broke my self-discipline— repeatedly— in Dershowitz’s criminal law class. He frequently harangued the opinions of conservative justices on the Supreme Court— with his pointed verbal jibes aimed particularly at two of the justices whom I admired most, Antonin Scalia and Clarence Thomas. He did this so often that it ticked me off and invariably prompted me to raise my hand: “Now, hold on a second, professor.”

Ted wanted to be a SCOTUS clerk from 1L:

Dersh genuinely cared about his students. Every year, after our first-semester grades came out, Dershowitz gave the first-year students, or 1Ls, a pep talk. “Every student here was a top student in elementary school, a top student in high school, and a top student in college,” he’d begin. Then he’d add, with just a slight grin, “Yet even at Harvard, fifty percent of our students . . . end up in the bottom half of the class.” I had no intention of being among that group. Wanting to be a Supreme Court clerk, I had researched the qualifications I needed. Most obvious, I needed to have stellar grades. One of the first things I did was form a study group,

On how Ted applied to Harvard Law Review–with a jab at affirmative action–and wanted to be like Obama:

Law reviews are student-edited legal journals, and just about every Supreme Court clerk has been on law review. At Harvard, people still talked about the first black president of that prestigious legal journal, named Barack Obama, who’d graduated just one year before I arrived at law school. To get on the law review, I participated in what amounted to an eight-day legal writing and editing competition. I filled one of forty slots that year— thirty-two of which were based on grades or writing. The remaining eight were based on affirmative action. In my second year, I decided to run for president of the law review. I wanted the position, of course, because it provided as close to a lock on a Supreme Court clerkship as one might get. I soon learned that I had zero chance of winning.

But who becomes President? The person that poses the least threat.

Election of the law review president was a ruthless process, one worthy of study by Machiavelli. The election was not necessarily for the brightest among us, or the most accomplished, or the most articulate. None of us wanted someone like that getting the job and thus increasing his or her odds of getting a Supreme Court clerkship at our expense. Rather, the way you got elected was to demonstrate that you posed as little threat to other law review colleagues as possible. Those without any interest in a clerkship or those certain to get one anyway were thus immediate front-runners. You could not be outspoken. Eleven people ran for the position that year— and those of us who were the most opinionated were quickly winnowed out. I was among them.


Ted goes on about how he opposed the affirmative action policy:

I also found myself in heated exchanges over the law review’s affirmative action policy, with which I strongly disagreed. Earlier that year, a group of conservatives on the law review had decided to challenge the affirmative action policy. I wasn’t terribly in favor of doing so— I could count the votes, and the liberals had an easy majority— but the conservatives went forward anyway. All eighty student editors gathered in a classroom for a robust debate, and initially I stayed quiet. Then one fellow turned to all of us and said, “If we abolish affirmative action, the Harvard Law Review will be nothing but rich white men.” This was said with total sincerity, and it is sadly a view shared by many well-meaning liberals who think they are doing the right thing. But it also proved in a single sentence what was wrong with affirmative action. Finally, I raised my hand. “You know what,” I began, “that last comment perfectly embodies how insidious affirmative action is.” I pointed out that the comment, on its face, implied that not a single person in the room who was not an Anglo white male deserved to be there. That we couldn’t make it on merit, that we couldn’t rise to the top without the help of our betters, fueled by their liberal guilt. The comment was even more revealing, I observed, because at the time the law review did not have affirmative action for women; the affirmative action policy was purely on racial and ethnic lines. And yet this supercilious liberal had suggested that no women would make the law review if selections were based purely on merit.* What nonsense. The argument was heated and personal. And then the votes came down to preserve the affirmative action policy, just as was apparent at the outset.

On his 104-hour work week for Charles Fried:

I worked the most for Fried. One time, when I was helping him with a case he had before the Supreme Court, I put in 104 hours of work in a single week. As a result, I missed several of my classes that week, including his class. Fried gently admonished me, “Do I need to scale back your work so you can attend classes?” I made sure not to miss his class again.

On selecting all “feeder” judges–but Michael Luttig wasn’t yet on the list.

In my perhaps excessively methodical way, I had mapped out a list of all the potential “feeder” judges to the Court— those appellate judges whose clerks tended to most frequently obtain clerkships on the U.S. Supreme Court. Because he had only been on the bench for three years, Michael Luttig hadn’t even appeared on my list. That was a significant omission on my part.

Thus Luttig, in a short amount of time, had become one of the top feeder judges in the country. I learned that of the nine clerks he’d had since he took a seat on the bench, seven had gone on to clerk at the high court. I quickly faxed an application over to his office, interviewed with him in Richmond, and we hit it off immediately. He and I became very close; indeed, for many years he was like a father to me.

On the 20-hour days:

When you work for Michael Luttig, you put in eighteen- to twenty-hour days. He was a perfectionist, and especially hard on himself. He could go through fifty or sixty drafts of opinions, which he typed himself. He took personal responsibility for training his clerks to be excellent lawyers. He knew every clerk well and cared about their personal and professional development. When he spoke on the phone with other judges, Luttig would often have us in the room with him so we could learn how jurists communicated with each other. He had set up three computer monitors on the table adjoining his desk so clerks could sit beside him and watch him draft opinions.

Bench memos could be no longer than 10 pages:

He valued concision. Our bench memos— summaries of a case’s arguments, relevant case law, and recommendations— needed to be ten pages; if one was longer, he told us, we hadn’t really figured out what the case was about. And he had two favorite sayings. The first was somewhat facetious: “Never muck up a good story with the truth.” We laughed uproariously with Judge Luttig, a master storyteller. The second saying reflected great wisdom, especially in regards to the bloated federal government: “Never attribute to malice what can be explained with incompetence.”

The Chief Justice gave him one day notice before the interview:

The day before the game, I received a phone call from the chambers of the Chief Justice of the United States. “The Chief would like you to come and meet with him,” said the friendly voice on the other line. “When are you available?” “I’m available whenever the Chief Justice would like,” I replied quickly. “Can you come in tomorrow?” Tomorrow. The day of the big game. The game I’d waited for. “Yes,” I replied. “Of course.”

And he made the Chief laugh:

Walking out of the interview, I decided to take a gamble with a joke. “You know, being here today is actually quite bittersweet for me,” I told him. “Really?” he said, somewhat taken aback. “What do you mean?” “Well, today is game four of the NBA Finals. And my Houston Rockets are about to sweep back-to-back championships. And I gave up my ticket to come talk to you.” I knew from reading about him that Rehnquist was a sports fan. And as I had hoped, he cracked up laughing. Then he said, “Well, I think you made the right decision.” To this day I am convinced that the reason I got the clerkship I’d coveted for years was that on the spur of the moment I made the Chief Justice laugh.

On being the death penalty clerk:

A clerk from each justice’s office would stay up late at night waiting for appeals to come in. Sometimes, as little as an hour before an execution, a fifty- or hundred-page fax would come into the Court (it was the age of faxes), laying out the case for why a defendant’s trial was unfair and he should have a new hearing, or raising some other legal point justifying a stay. If the appeal was in a circuit assigned to your justice, it was your responsibility to read through the entire petition as quickly as possible. Then the clerk would call his boss, who was at home and probably asleep (although they knew the call was coming). In my case, the conversation would go something like this: “Mr. Chief Justice, there is a last-minute appeal in the X case. They’ve raised six claims here to justify a stay.” Then I’d describe the claims over the phone. I’d give my recommendation, and then the Chief Justice would decide how he wanted to vote. In most cases, justices vote against a last-minute stay of execution. I’d then write up a draft memo for the other justices’ offices, summarizing the appeal and outlining why the Chief had voted to resolve the claims as he did. I would also make a point of doing something the liberal clerks who opposed capital punishment rarely did— simply describing the brutal nature of the crime for which the defendant had been convicted. The appeal would go to the full Court for a vote. Each of the other eight clerks would call their justices at home, wake them up, and then the justices would each vote on the appeal that night. The current system is indisputably being gamed by the defense lawyers in the hopes that the clerks will get these voluminous appeals filed at the last minute, throw up their hands, and the Court will issue a stay just to have time to sort through it. It’s a cynical strategy— in my view, a dangerous one— which results in claims being adjudicated by sleepy justices at midnight with little time for adequate review.

It would be the clerk that sends the actual order:

So, late at night, after the Court had voted to deny a stay of execution, it would fall to us clerks to draft the order of the Court. The lead clerk that night would sign it, with your justice’s initials and your own— in my case “WHR/ tc”— and then you’d place it on the fax machine and send it to the prison that was about to carry out the execution. Every time, it was a sober responsibility to sign those documents and fax them off.

How the Chief would not try to persuade Justice O’Connor:

On the death penalty or any other major issue before the Court, Rehnquist hardly ever lobbied other justices, though sometimes we would beg him to. It would have been particularly helpful if he had tried to persuade his old friend and law school classmate, Sandra Day O’Connor, to vote his way. Rehnquist and O’Connor had briefly dated, in law school, and they had been friends for more than five decades. She also tended to be the pivotal swing vote on any number of decisions. But Rehnquist usually refused such entreaties. He was very respectful of the other justices’ points of view. “No, no,” he’d say. “She can decide this for herself.”

On Mike Carvin & Chuck cooper:

Coming out of my clerkship, I had gone to work at Cooper & Carvin, a tiny law firm founded by Chuck Cooper and Mike Carvin, both protégés of Ed Meese in the Reagan Justice Department. Chuck was also a former Rehnquist clerk, a graceful and elegant writer, and one of the top Supreme Court litigators in the country. Mike is simply brilliant, blessed with Scalia-esque intellect and a wicked wit. Theirs was a brand-new firm— just nine months old, and I was just the seventh lawyer to join them. The firm’s practice was unique, specializing in cutting-edge constitutional litigation and commercial litigation.

Most clerks go to work for big, established firms, but some of the best advice I had gotten was to work for people that can best teach you how to practice law. I respected Chuck and Mike and wanted to learn lawyering from them. They’re principled conservatives, and phenomenal litigators, and both became great friends and mentors to me.

How Ted Cruz shined the bat signal and summoned Mike Carvin and some guy named John Roberts.

When it became clear we were in for a long fight, Ben Ginsberg and I sat down together with a notepad and started to discuss whom we should ask to come down and help us. The first person I suggested was my former boss Mike Carvin. There’s no one better if you are in a fast-paced, unpredictable litigation. With blazing speed, he can think through all of the difficult tactical decisions likely to occur. When I called Mike, he was at a wedding in Seattle. I said, “Mike, we need you to come down here.” He didn’t hesitate. “I’ll be right there,” he said. Mike got on a plane and flew to Washington, D.C., where his wife met him at the airport with a suitcase full of clothes. Hours later, he was in Tallahassee. Another friend I called was the head of Supreme Court litigation at the venerable firm of Hogan & Hartson. It was a fellow named John G. Roberts. While I had been clerking for Chief Justice Rehnquist, the Chief mused to me once that he thought he could get a majority of the Court to say that John was the best Supreme Court litigator in the country. Like Mike, John understood what was at stake in Florida. He jumped on a plane and immediately came down. Roberts was not only a brilliant Supreme Court lawyer, but startlingly low-key and self-effacing. Although he was one of the leading Supreme Court litigators in the nation, he had befriended me several years earlier when I was a baby lawyer. He didn’t have to do so, and most people in his position would not. For that, I have always been grateful. One day about midway through the recount, he was leaving the headquarters of the Florida Republican Party— the George Herbert Walker Bush Building, as it so happened— and was carrying a suitcase. I said, “John, where are you going?” “I’ve got to get back to D.C.,” he said. “John, we’re in the middle of a battle for the country,” I said. “How can you be leaving?” He somewhat sheepishly replied, “Well, I’ve got a U.S. Supreme Court argument tomorrow morning.” I had to laugh and say, “Well, that’s a pretty good reason for you to go.” Roberts flew home, argued a complicated intellectual property case that he went on to win, 9– 0, and then immediately returned to work, helping us win the recount battle.

On the Bush v. Palm Beach County appeal to SCOTUS:

When we first decided to take our case to the U.S. Supreme Court, there was a division of opinion among the lawyers as to whether the Court would take the case. Personally, I believed the justices would see political risk in getting in the middle of such a contentious and political dispute. But having clerked on the Court, I also believed they would feel a responsibility not to duck such an important case. As we prepared for our first trip to the Supreme Court, I worried that our lead argument was too aggressive. I suspected the justices would be cautious about making a sweeping decision in such a case. Often in litigation, swinging for the fences is a mistake; one of the surest paths to victory is finding a narrow ground that benefits your client but doesn’t require the Court to go too far out on a limb. So I suggested a fallback argument: We should tell the Court that even if they didn’t completely agree with us, they should nonetheless vacate the decision below, clarify the federal law in question, and then send the case back down to the Florida Supreme Court to reconsider. I worked with Tim Flanigan and Noel Francisco— two dear friends, and incredibly talented lawyers— to draft the portion of our brief asking the Court to do so.

Ted was tipped off about the Bush v. Gore opinion:

On December 12, at about 10 p.m., I got a call on my cell phone from the clerk’s office of the U.S. Supreme Court. The caller, an old friend from my days at the Court, told me, “The decision is coming down. We’re going to fax it to you now.” I pulled the papers off the fax machine and carried them into Jim Baker’s office. As he stood there wearing a dark green Michigan State sweat suit, I handed him the opinion. He handed it back. “Well?” said Baker. “What does it say? What does it mean?” It was a complicated, twenty-five-page opinion, and despite my paraphrasing of it above, it did not include a line that said, “George W. Bush is president. The end.” Indeed, at that very moment, reporters were standing on the steps of the Court, utterly befuddled trying to figure out the ruling. I read over it for several minutes, as quickly as I could, with the former secretary of state looking silently over my shoulder. After a few minutes, I looked up at Baker and said, “It means it’s over. We’ve won.” Secretary Baker looked at me, nodded, and placed a call to Crawford, Texas. “Well, Mr. President,” he drawled, pausing slightly after he used that title for the first time, “how does it feel?”

When Harriet Miers told AG Abbott to cede to the ICJ in Medellin:

Attorney General Abbott and I argued passionately that the president needed to be briefed on the profound consequences of ceding sovereignty to the United Nations, that it was unconstitutional and dangerous. But Miers was unpersuaded. When we hung up the phone, Abbott and I simply shook our heads in dismay. “Oh my God,” he said. “Oh my God,” I agreed.

On his first argument in Frew v. Hawkins:

Even though I had serious doubts about our chances of winning, I felt ready for the oral argument— confident, even. I had prepared diligently, and I knew the case backward and forward. But once I went to bed, I didn’t sleep a wink the entire night. My stomach quivered, my mind raced. I kept staring at the ceiling, considering questions and answers over and over in my head. Perhaps my subconscious was telling me I wasn’t quite as confident as I had thought. Lawyers tend to be superstitious. I had a favorite pair of boots— my lucky black ostrich “argument boots”— and I had worn them in every single argument I had given as solicitor general. But I hesitated before putting them on that morning. Rehnquist was a stickler for wardrobe. Indeed, he’d previously reprimanded a lawyer for wearing a brown suit. “That is not appropriate attire for this courtroom,” the Chief told him. And there was an excellent chance that if he saw my boots, he would say the same thing to me. Lacking the courage of my convictions, I’m ashamed to say that I went to my closet, put away my boots, and instead wiped away the years of dust on an old pair of wingtips.* I was already starting on an uncomfortable note.

On losing it 9-0:

Unanimously, 9– 0. After the case was decided, I visited with the Chief Justice in his chambers over tea. “Well, they say that with your first argument, you should pick a case you can’t lose or you can’t win,” he said with a smile. “Ted . . . I think you chose wisely.”

On getting all 50 Attorneys General to sign Texas’s amicus in the Newdow pledge of allegiance case:

As the deadline for submitting the brief approached, I spent several days on the phone calling solicitors general in other states to urge them to join our brief. Most had joined, but a handful refused. On the final day, I called each of the holdouts back. “I just wanted to check again and see if your boss wants to join this brief,” I said. “If not, fine, I respect that your boss wants to be one of the few attorneys general in the country who doesn’t support the Pledge of Allegiance. That’s a real profile in courage.” In the end, no attorney general wanted to be left standing without a chair when the music stopped. All fifty attorneys general signed Texas’s brief, the first time to my knowledge that every state has signed a single brief submitted to the Supreme Court. And five months later, the Court unanimously reversed the decision of the lower court. We won, and children in California schools were once again free to pledge their allegiance to “one nation, under God.”*

Contrary to his recent barbs about Chief Justice Roberts, Cruz lauds advocate Roberts:

Before becoming Chief Justice, Roberts was an extraordinary advocate; indeed, when I began practicing, I worked hard to try to emulate his argument style. In his oral arguments, he never got emotional. He simply answered each question that was asked of him. This sounds easy and obvious, but in fact it is exceedingly difficult to resist the temptation to dodge hard questions or to answer the question you wanted, not the one you actually got. You do not get to be the best Supreme Court advocate of your generation, as John was, without having an exquisite understanding of what makes each of the sitting justices tick. With his immense credibility before the Court, Roberts had consistently managed to get the swing votes to sway in his direction. Therefore, whenever I appeared before the Roberts Court, I would always listen carefully to his line of questioning. Often he would be raising arguments that he deemed most likely to win over swing votes like Justice Kennedy. And whatever line he was posing, I would try to follow

On AG Abbott’s argument in Van Orden v. Perry:

host of factors made victory for the state less likely. The other was ours. For this particular case, I recommended to Attorney General Abbott that he present the oral argument himself. He had not yet argued in front of the Supreme Court, and I told him, “If you’re going to argue a case, this is the right one for you to choose. The issue is incredibly important, and I believe we can win.” He agreed, spent two months holed up in his office preparing, and did a superb job. At the end of the oral argument, the presiding justice— Justice Stevens, rather than Chief Justice Rehnquist, who was ill— did something that I had never seen in any argument before and that I have not seen since: He made a point of complimenting Attorney General Abbott for his particularly excellent oral advocacy. “General Abbott,” said Justice Stevens to the wheelchair-bound attorney general, “I want to thank you for your argument and also for demonstrating that it’s not necessary to stand at the lectern in order to do a fine job.”

When Paul Clement called Ted Cruz about Medellin:

Therefore, several weeks after our unproductive phone call with White House Counsel Harriet Miers, I received a call from President Bush’s solicitor general, Paul Clement. “Ted,” he said ominously, “are you sitting down?” “Paul, that’s not a good way to begin a conversation,” I replied, sort of laughing. “I’m worried what’s coming next.” In his late thirties at the time, with thinning hair and a shy smile, Clement is the mild-mannered native of a small town in Wisconsin. He is also one of the most talented appellate advocates of his generation. Now in private practice, Clement is hired to argue more Supreme Court cases in a single year than most appellate experts will argue in a lifetime. When Clement called me in early 2005, he knew how strongly I felt about the constitutional issues in the Medellín case, and he didn’t relish being the bearer of bad news. But he was a good soldier, even in an administration that didn’t always stand up for its conservative principles. So he informed me that President Bush had decided to sign a two-paragraph order purporting to compel the state courts to obey the World Court.

Therefore, several weeks after our unproductive phone call with White House Counsel Harriet Miers, I received a call from President Bush’s solicitor general, Paul Clement. “Ted,” he said ominously, “are you sitting down?” “Paul, that’s not a good way to begin a conversation,” I replied, sort of laughing. “I’m worried what’s coming next.” In his late thirties at the time, with thinning hair and a shy smile, Clement is the mild-mannered native of a small town in Wisconsin. He is also one of the most talented appellate advocates of his generation. Now in private practice, Clement is hired to argue more Supreme Court cases in a single year than most appellate experts will argue in a lifetime. When Clement called me in early 2005, he knew how strongly I felt about the constitutional issues in the Medellín case, and he didn’t relish being the bearer of bad news. But he was a good soldier, even in an administration that didn’t always stand up for its conservative principles. So he informed me that President Bush had decided to sign a two-paragraph order purporting to compel the state courts to obey the World Court.

On Heller:

In 2008, the administration went wobbly again, and once again the Texas Solicitor General’s Office was called to serve as a check and to defend conservative principles. The case was District of Columbia v. Heller. The issue was the constitutional right of Americans to keep and bear arms.

So when the constitutionality of D.C.’ s gun control laws arrived at the Supreme Court for argument in 2008, I was optimistic that Solicitor General Paul Clement would argue for a robust interpretation of the Second Amendment. Sadly, the Bush administration did not allow him to do that. The Department of Justice refused to support Dick Anthony Heller, a federal law enforcement officer and D.C. resident who was challenging the city’s prohibition of handguns. Instead the administration argued that “reasonable restrictions” are constitutional if they protect “important regulatory interests”— whatever that means