Ted Cruz joins Michael Knowles to discuss the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg, who died at the age of 87, and whether the Senate should fill the vacancy now that a replacement has not been nominated.
00:03:44.660And this is where it's important to understand why 2016 and 2020 are very, very different.
00:03:49.640What the Senate has done is very, very different depending on whether the Senate is of the same party as the president or a different party from the president.
00:04:48.680So, there's a pattern that goes back two centuries.
00:04:52.520You know, I got to say something here, Michael.
00:04:54.660It's easy for people to say, well, gosh, well, then it's just people being partisan.
00:04:59.060Well, there's more to it than that, actually.
00:05:02.420Because under our Constitution, elections matter.
00:05:05.680Under our Constitution, particularly right now, if you think about it in 2016,
00:05:09.240Donald Trump ran on the kind of justice he intended to nominate to replace Antonin Scalia and to replace any other justices, the vacancies that occurred.
00:05:21.640That was a major reason he was elected.
00:05:23.480That was the biggest reason I voted for Donald Trump over Hillary Clinton, is the kind of justices he promised to appoint.
00:05:30.340On the other hand, Hillary Clinton promised to nominate liberal activists, and the American people voted against her.
00:05:36.580Likewise, the U.S. Senate, a big, big reason we have a Republican majority in the Senate is that Republican senators promise to confirm constitutionalist judges to the court and to block liberal activists.
00:05:51.320And the American people elected Republicans to the Senate in 2014, in 2016, and they actually grew the Republican majority in 2018.
00:06:00.980And so when you have all these reporters pulling their hair out and saying, well, because you blocked President Obama's nominee, you have to block Trump's.
00:06:15.720And it's not consistent with the history of the country.
00:06:18.140Of course, this charge of hypocrisy seems sort of silly to me because we elect our politicians to exercise the political power they can, and that will change by the circumstances.
00:06:28.780But I don't fault Barack Obama for putting up Merrick Garland.
00:06:31.680I don't fault Mitch McConnell for not taking up that nomination.
00:06:34.460I don't fault President Trump or the senators in the GOP for now pushing forward this nomination.
00:06:40.900And obviously, I hope it goes through on that point, Senator, since I am not in that exclusive club in Washington, D.C.
00:06:48.340Can you tell us what is going on right now?
00:06:59.540Look, and I'm concerned – you mentioned in the open show how tense things are.
00:07:08.780We've already seen, unfortunately, violence in the street.
00:07:11.360I'm very concerned it's going to get worse.
00:07:12.920You're seeing Democrats threaten it to get worse.
00:07:15.820You're seeing liberal journalists threaten violence.
00:07:19.380And I think the Democratic senators are – Chuck Schumer has threatened, he's boomed, everything is on the table, which, frankly, I don't think is terribly consequential because they intended to be radical and extreme regardless.
00:07:35.220So they're still going to be radical and extreme if they win.
00:07:39.960Look, the big question is where are the Republican votes going to be?
00:10:17.540The Democrats in the media, it's like a Freudian projection.
00:10:21.500They accuse the other side of doing what they're doing.
00:10:25.340Given the the almost certainty that Biden's going to be challenging the election, if this seat is not filled by Election Day, we would have eight justices on the court.
00:10:38.600If the Supreme Court deadlocks for four, it can't reach a decision.
00:10:43.600So an equally divided court has no authority to decide anything and understand the chaos of this.
00:10:51.540Well, what happens if you if you don't have a Supreme Court that can decide it?
00:10:55.760Well, I think the odds are very high that we will see if Biden loses not just one lawsuit or one contested election like we had in 2000 and Bush versus Gore in Florida.
00:11:08.160You had multiple lawsuits, but just one state being challenged.
00:11:11.440I think Biden is likely to bring multiple cases all over the country in any close state.
00:11:17.060And we could end up with conflicting decisions from conflicting circuit courts.
00:11:23.340And if there's no Supreme Court, you can't resolve those conflicts.
00:11:27.080And we could easily find ourselves in the midst of a constitutional crisis with this presidential election taking days and then weeks and then months with no resolution.
00:11:38.800And that that kind of chaos, I don't believe Republicans should allow to happen.
00:12:31.800You know, a lot of this debate now over whether or not to fill the seat has come down to the personal wishes of Justice Ginsburg.
00:12:40.300You have some Democrats now saying that it was Ruth Bader Ginsburg's dying wish that no Republican fill her seat.
00:12:47.640And of course, I don't know of any dying wish clause in the Constitution.
00:12:51.360But regardless, we also have video of Justice Ginsburg saying now after the 2016 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 because it is an election year.
00:13:07.560So we've heard from her own mouth this idea that we should go forward with the nomination.
00:13:11.680We've heard from some people, I suppose, who knew her that she wouldn't have wanted them to.
00:13:15.520It occurs to me, Senator, you have met Justice Ginsburg on a number of occasions.
00:13:21.040You've argued cases before the Supreme Court.
00:13:23.360Do you have any personal insight into the justice, any personal reflections now that she's passed?
00:14:05.180And, you know, it's an amazing thing when she was coming out of Columbia Law School, she applied for a Supreme Supreme Court clerkship with Justice Felix Frankfurter, renowned liberal justice.
00:14:17.240And he turned her down because she was a woman.
00:14:19.560He wouldn't hire a woman, despite she had professors from law school making the case for her.
00:14:27.040She had a hard time getting hired as a lawyer.
00:14:31.020And it's actually quite an amazing thing.
00:14:33.240And Sandra Day O'Connor, who came out of Stanford Law School, she was number three in the class.
00:14:38.180Both of them were offered jobs as legal secretaries.
00:14:41.520I mean, you want to you want to talk about serious discrimination.
00:14:45.660They're graduating at or near the top of their class and they can't get hired as first year lawyers.
00:14:51.560Justice Ginsburg ended up becoming a professor and then becoming a Supreme Court advocate.
00:14:56.740And she was actually one of one of the finest Supreme Court advocates to have ever lived.
00:15:02.080You know, you know, when it comes to race and issues of equal justice before the law, Thurgood Marshall is really the pioneer of arguing cases to expand to fight racial injustice.
00:15:16.400Ruth Bader Ginsburg did the same thing when it comes to gender inequality.
00:15:20.300And she had a litigation strategy where she would challenge laws that were designed to benefit women, to give special benefits to women.
00:15:30.020But she challenged them as being inconsistent with the Constitution's equal protection clause that the Constitution, she would argue, mandated that you treat men and women the same.
00:15:40.120And she really pioneered a transformation in law that that that I got to say, as as the father of two daughters, I'm really proud that we have moved away from legal discrimination and and and and and separate standards for men and women.
00:15:56.980And Justice Ginsburg, as an advocate, played a critical role in that.
00:16:00.800Hearing this sort of personal account from you is is helping me to bolster my sort of personal like of Justice Ginsburg, because, of course, very famously, she was friends with Antonin Scalia.
00:16:15.060And for a lot of conservatives, that's enough for us to say, oh, she can't be all that bad.
00:16:18.720But to hear these personal stories does does bolster that as well.
00:16:22.480Well, Scalia and Ginsburg really liked each other.
00:16:24.440And so it was interesting. Scalia was much closer to Ginsburg than, say, he was to Clarence Thomas.
00:16:29.140Jurisprudentially, they were much closer, but personally, and it was almost it was an almost an odd couple friendship because Scalia was loud and boisterous and brilliant.
00:16:41.820I mean, Scalia was was an extraordinary person.
00:16:45.700Ginsburg temperamentally was very quiet.
00:17:18.960Most of the big cases that I argued before her, she voted against me, although interestingly enough,
00:17:23.560one of the bigger cases I argued was Medellin versus Texas, where Texas stood up and fought the world court and the United Nations and the president of the United States.
00:17:33.960And I argued it twice, won five, four the first time, six, three the second time.
00:17:39.540The first time I won, the five, four included Justice Ginsburg.
00:17:44.020She was the necessary fifth vote that if she had voted against the state of Texas, we would have lost.
00:17:49.020We lost Sandra Day O'Connor, but we picked up Justice Ginsburg as our fifth vote.
00:17:53.820And that was very important for the court ultimately striking down the world court and the president's overreach of power.
00:18:00.960However, I can tell you another Ginsburg story, which is one of the cases I argued before the court was the Texas redistricting case.
00:18:10.360And you may remember that that about 15 years ago, there was some news about Justice Ginsburg falling asleep at oral argument.
00:18:19.780And it made the papers all over the place.
00:18:54.200Um, and and and at the time when I was teaching a class on Supreme Court litigation at University of Texas Law School.
00:19:03.140So I came back the next week to my class and my students were cracking up laughing.
00:19:08.600I mean, this is made news that Justice Ginsburg had fallen asleep.
00:19:11.820And I told her I said, look, you know, I told my students, I said, listen, that's really what every advocate aspires to.
00:19:19.560To render your adjudicator unconscious.
00:19:23.100Yeah, that's through the power of your arguments.
00:19:25.940Well, I 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 them right out.
00:19:37.100And interestingly enough, in that case, Justice Ginsburg did not need to be awake to vote against me.
00:19:51.000When I started my career as a law clerk for Chief Justice William Rehnquist, the chief liked Justice Ginsburg.
00:19:58.580He thought she was a very careful lawyer.
00:20:01.040And if there was a case whose legal outcome the chief didn't like, but he was in the majority and there were some instances where the votes on the court were with the left and the chief would be with the majority.
00:20:16.320Justice Ginsburg was the liberal justice he most liked to assign the opinion to because she was a very careful lawyer.
00:20:26.560And so if there's 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 wouldn't write this this undisciplined opinion.
00:20:42.520Justice Souter, who was on the court, if he had a majority opinion, he could drop footnotes that would wreak havoc to whole other areas of law.
00:20:55.700So Ginsburg, by far, was who the chief most liked to assign it to if it was going to be someone from from the left on the court.
00:21:02.680Well, this brings us to a mailbag question that that's came out to me, and I'd be curious to hear your thoughts on it.
00:21:08.820This is from Rogue Millennial, who says, obviously, so much of the debate over Justice Ginsburg's old seat and filling the vacancy comes down to Roe v. Wade.
00:21:19.800It comes down to abortion, and Rogue Millennial asks, if a conservative majority SCOTUS considers overturning Roe v. Wade, is the wiser path to overturn it simply and return legislative power to the states?
00:21:32.140Or should they or would they seek to go further and to rule on the 14th Amendment as protecting the unborn regardless of state laws?
00:21:41.940So that's a very savvy question, and it's important to highlight what Roe v. Wade did because a lot of people don't know.
00:21:50.500I mean they know – they've heard of the case.
00:21:52.800They know it has to do with abortion, but they don't actually understand what Roe v. Wade did.
00:22:00.440Prior to Roe v. Wade, abortion was a state law matter, and each state had different laws on abortion.
00:22:06.460Some states were quite permissive with it.
00:22:08.400Some states were quite restrictive with it.
00:22:10.600What the Supreme Court did with Roe v. Wade is largely took it out of the hands of the elected legislatures.
00:22:18.040So if Roe v. Wade were overturned, it wouldn't suddenly make abortion illegal.
00:22:25.080What it would do is return the decision to the states, and what we would see as a practical matter is different standards, again, state by state.
00:22:46.300In other states, New York, California.
00:22:49.520In other states, you would see far more significant limitations put in place.
00:22:54.440And, you know, there's a virtue to that, which is Supreme Court Justice Louis Brandeis talked about the 50 states as laboratories of democracy.
00:23:04.000What you would see is abortion laws that reflect the values of the citizens of each state.
00:23:10.800And, as you know, I've got a book coming out, One Vote Away.
00:23:26.140It's now coming out a week from today, September 29th.
00:23:29.680It's called One Vote Away, and it has an entire chapter on abortion and Roe v. Wade and partial birth abortion laws because one of the cases that I litigated, I represented the states as amici, as friends of the court, defending the federal partial birth abortion law.
00:23:50.620So, the federal law banning partial birth abortion, the court upheld that 5-4.
00:23:59.160If 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.
00:24:11.740That partial birth abortion is allowed, that no parental consent, no parental notification, that taxpayer funding is mandatory.
00:24:21.580You know, we talked about challenges to elections in Bush v. Gore.
00:24:26.600I've got an entire chapter talking about Bush v. Gore and preserving democracy.
00:24:33.480Had there been only eight justices, that decision could have deadlocked 8-8 and instead of lasting, or 4-4 rather, and had that happened instead of lasting 36 days, Bush v. Gore could have lasted months and months and months.
00:24:50.940And so, the book, One Vote Away, every chapter talks about a different constitutional right.
00:25:00.160It could not be more timely, and people should certainly go out and go read One Vote Away.
00:25:06.540And, Senator, you should probably get back to the Capitol and work on this issue of making sure that that vote goes into the hands of a good constitutionalist.
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