If Ted Cruz feels snubbed or used by Donald Trump’s nomination of Jeff Sessions for Attorney General, he didn’t show it. At an event earlier today, Cruz offered nothing but praise for his current Senate colleague, commending his integrity and commitment and said Sessions would make an “extraordinary” AG. Cruz seems to think that he’s not off the nomination merry-go-round quite yet, either:
Sen. Ted Cruz (R-Texas) is not ruling out the possibility of filling the Supreme Court’s open seat.
Asked Friday at a National Lawyers Convention event whether he’d accept a high court nomination, Cruz responded: “What I will say is that history is long and can take unexpected paths.”
“I think it is absolutely vital that that seat and every other seat that comes vacant on the court be filled principle constitutionalists who will be faithful to the law and will check their own policy preferences at the door,” he added.
What better platform to pursue that than as a Supreme Court justice? Our friend and colleague Amanda Carpenter, who worked for Cruz, commented earlier this week that it would be more than a little strange to accept a job from a political opponent from which he could be fired. That would have made the AG slot — or practically any other job — less than attractive to Cruz, who could barely bring himself to acknowledge that he was voting for Trump, let alone liked him enough to work for him.
Of course, that brings us to another question: Why would Trump give Cruz a nomination to anything, let alone the Supreme Court, after their bitter rivalry? For one thing, it could help butter up conservatives who will have reasons to get unhappy when some of Trump’s domestic-policy agenda comes down the pike. Getting Cruz out of the Senate might be an end to itself in that regard, too. I made that argument the morning after the election:
Trump could kill more than one bird with one stone by choosing his first Supreme Court nominee from the Senate, but with Ted Cruz rather than Lee. Cruz looks likely to face a tough primary challenge for his seat in 2018, and he’s torched a number of bridges with his colleagues in the Senate over the last few years for very little gain. With Trump in the White House now, Cruz has to look to 2024 for a potential shot at the Oval Office, and could very well have been out of public office for six years by that time. His Senate colleagues might be delighted to confirm him and let Texas voters select Cruz’ replacement in 2018. That would eliminate at least a theoretical opponent in the 2020 election for Trump and push Cruz into a position where he’d have to think carefully about criticizing the new administration. Plus — and this is no joke — the court would get a brilliant legal mind on constitutional issues to replace the one we lost early this year, potentially for the next 40 years, and a jurist unlikely to “grow in office” to the Left. Sounds like a win-win, right?
It still looks that way, even if Senate Democrats decide to take up the filibuster to keep Cruz off the court. However, that’s the only use of the filibuster left to Democrats in stopping Trump’s nominees. Lots and lots of journalists keep commenting about potential filibusters, especially in regard to Sessions, but Harry Reid blew up that safety valve three years ago to wild acclaim on the Left:
Senate Majority Leader Harry Reid, D-Nev., pushed through a controversial change to Senate rules Thursday that will make it easier to approve President Obama’s nominees but threatens to further divide an already polarized Congress.
Fifty-two Senate Democrats and independents voted to weaken the power of the filibuster. The change reduces the threshold from 60 votes to 51 votes for Senate approval of executive and judicial nominees against unanimous GOP opposition. Three Democrats — Sens. Mark Pryor of Arkansas, Joe Manchin of West Virginia and Carl Levin of Michigan — opposed the change.
The rule change does not apply to Supreme Court nominees, who are still subject to a 60-vote filibuster threshold, or to legislation.
Republicans warned Democrats at the time that they would live to regret it, and that time has finally arrived. Don’t expect Republicans to be shy about applying Reid’s standard to SCOTUS picks and ending the non-legislative filibuster forever if they try blocking Cruz, William Pryor, or whomever Trump nominates to the top bench during this term of office. John wrote about that earlier, but Fred Bauer warns that Republicans might live to regret pushing the limits:
The results of last Tuesday remind us that seemingly permanent majorities can be anything but. Both the Republican and the Democratic parties will face some time in the electoral wilderness in the years ahead, and the minority protections of the Senate should be there for both sides. The Obama years have led the Democratic party into one political box canyon after the next, and Senate Democrats may yet come to rue Harry Reid’s use of the nuclear option for executive appointees (because of Senator Reid’s decision, removing the filibuster for Supreme Court nominees would be far less of a shock to the congressional system than removing it for legislation). …
The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation. Cooperative norms have broken down in the federal government in recent years, but wiping away the filibuster could worsen partisan polarization. However they come down on the filibuster and the nuclear option (topics about which reasonable people can disagree), Republicans should keep their eyes on bigger visions and policy goals and not succumb to reflexively adversarian partisanship. Harry Reid’s legacy in Senate leadership will likely be one of partisan nihilism — the man who assailed the tradition of consensus and who shruggingly replied, “Romney didn’t win, did he?” to the accusation that he had lied about Mitt Romney’s not paying taxes. The next Congress should do — and our republic certainly deserves — better than that.
At this point, Democrats are probably shell-shocked enough not to push their bad hand very much farther. The real test will come when Trump has to nominate a replacement for one of the court’s liberal members, and that might not be for a while. If Democrats are smart, they’ll give Trump carte blanche on the Scalia seat, because he’s going to win on that one anyway.