In an interview with Sahil Kapur at Bloomberg Politics, Sen. Ted Cruz offered several remarks about what he is looking for in a Supreme Court Justice, and offered some opinions on Lochner and Wickard v. Filburn.
First, Cruz explained that Republicans have an “abysmal record” for picking Supreme Court Justices, citing in particular the selections of Chief Justice Roberts, Justice Kennedy, and David Souter, as well as throwbacks to Brennan, Warren, Stevens, and Blackmun. The President should avoid stealth candidates, and focus on judges with a “long paper trail.”
“The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.” …
Driving east in his car after a campaign stop near Iowa City, the accomplished Supreme Court litigator and former Texas solicitor general said he’d only settle for “rock-ribbed conservatives” who have “a long paper trail as principled conservative jurists.” His ideal contender would be someone who has refused to bow to pressure, rather than a “stealth candidate” without a demonstrable conservative record.
Cruz cited Souter and Roberts (whom Cruz praised at the time he was appointed, an appointment Cruz has since called a mistake) as examples of “stealth” Republican-selected nominees without a proven conservative record. If more conservative judges like Edith Jones and Mike Luttig were picked, he argued, Obamacare would have been struck down in 2012 and states wouldn’t have lost their authority to ban same-sex marriage. (Both cases were decided by a 5-to-4 margin.)
I am glad that Cruz is citing candidates who have “long paper trials” and are not “stealth candidates.” (These are traits that Randy Barnett and I extolled in the Weekly Standard). This is a departure from his 2005 Op-Ed in National Review, where he championed Roberts, in spite of his limited judicial record. Indeed Cruz cited, among others, Earl Warren, Sandra Day O’Connor, and David Souter’s limited experience to support Roberts.
Second, Cruz said that that the President must be willing to spend the political capital for a life-time appointment.
“Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative,” Cruz said. …
Presidents Bush took the “easy way out” by picking Souter and Roberts, Cruz said. “They didn’t want to spend the political capital trying to confirm a proven conservative.” As examples of principled conservative justices he’d model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.
Randy and I made the same point in our article.
Third, Ted Cruz does not think Lochner was correctly decided:
“I am not a supporter of Lochner,” Cruz said. “I believe that minimum wage laws harm the most vulnerable in our society, that they are bad policy. As a legislator, I would vote against those laws. But I do not believe it is the role of the courts to strike them down. The states have the constitutional authority to impose foolish laws … So I disagree with some conservatives who argue, à la Lochner, that the courts should impose conservative policy.”
Lochner wasn’t about the minimum wage, but a maximum hour law, although this is generally viewed as part of the broader “Lochner Era.” Sen. Rand Paul has come out in defense of Lochner during his 2013 filibuster, citing the work of David Bernstein.
Fourth, Cruz does not think Wickard v. Filburn was correctly decided:
Cruz shares those conservative concerns, saying Wickard wasn’t correctly decided.
“No,” he said. “It was not.”
Fifth, Cruz chuckled if he would pull a Taft, and serve as Justice after serving as President.
Before ending the interview, Bloomberg Politics asked Cruz if he’d accept a hypothetical nomination to the Supreme Court by a future president.
He paused for three seconds, revealing a sense of intrigue behind his smile.
“One step at a time,” he said. “Time will tell if I’m in a position to assess that offer.”
Although, a better question is whether a President Cruz would appoint himself as Justice in his final term.
I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here and here), Jeb Bush (here and here), Rand Paul (here, here, and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.
Disclosure: I have advised the Rand Paul campaign.