Sen. Cruz Denounces Democrats’ Efforts to Politicize Supreme Court
by Ted Cruz on September 23, 2020 at 2:56 PM
As a member of the Senate Judiciary Committee, I yesterday on the Senate floor objected to Sen. Chuck Schumer's amended resolution after Senate Republicans introduced a resolution commemorating the life and service of Justice Ruth Bader Ginsburg. I offered an alternative resolution to protect the integrity of the Supreme Court.
Reserving the right to object after Sen. Schumer offered his amendment and politicized a long-held tradition in the Senate of honoring Supreme Court justices after their passing, I said:
"Unfortunately, the Democratic leader has put forth an amendment to turn that bipartisan resolution into a partisan resolution. Specifically, the Democratic leader wants to add a statement that Justice Ginsburg's position should not be filled until a new president is installed, purportedly based on a comment Justice Ginsburg made to family members shortly before she passed.
"That, of course, is not the standard. Under the Constitution, members of the judiciary do not appoint their own successors. No Article III judge has the authority to appoint his or her own successor. Rather, judicial nominations are made by the president of the United States, and confirmations are made by this body, the United States Senate.
I went on:
"I would note that Justice Ginsburg was someone whom I knew personally. I argued nine times before Justice Ginsburg in the Supreme Court. She led an extraordinary life. She was one of the finest Supreme Court litigators to have ever practiced and she served 27 years on the Court, leaving a profound legacy. Justice Ginsburg understood full well that the position being put forth by the Democratic leader is not the law and is not the Constitution. Indeed, I will quote what Justice Ginsburg said just four years ago. Reported in The Washington Post on September 7th, 2016 Justice Ginsburg is reported to have said, ‘The president is elected for four years, not three years. So the power he has in year three continues into year four. Maybe members of the Senate will wake up and appreciate that that's how it should be.'
"Now, of course, when Justice Ginsburg said that, that was when President Obama had made the nomination of Merrick Garland to the Supreme Court, and the Senate declined to consider that nomination. Without even a hint of irony, every Democrat who is now screaming from the ramparts, that we cannot consider a vacancy on the Court during this election year, was screaming equally loud from the ramparts that we must consider a nomination during a presidential election year, just four years ago. Joe Biden vociferously called for the Senate to consider that nomination. Barack Obama called for the Senate to consider that nomination. Hillary Clinton called for the Senate to consider that nomination. The Democratic leader said the Senate was not doing its job if we didn't consider that nomination. [...]
"Well, today, obviously, the situation has changed, where all of those Democratic members who demanded the Senate take up a nomination to the Supreme Court are now demanding the Senate not take up a nomination to the Supreme Court. Now, to be sure, the Republican majority that declined to consider that nomination is now going to take up President Trump's nomination to this vacancy. But I would note, the circumstances are markedly different.
On the historical precedent in the Senate for confirming a nominee in an election year to fill a vacancy, I continued:
"The question of whether a president should nominate a Supreme Court justice to fill a vacancy that occurred in a presidential election year has occurred 29 times in our nation's history. This is not new. 29 times. Of those 29 times, presidents of both parties, Democrats and Republicans, have nominated justices 29 times. Every single time there's been a vacancy in a presidential election year, a president has nominated a justice to that vacancy. Of the 44 individuals who served as president of the United States, 22 have done so. Fully one half of the presidents who have ever served this country have made Supreme Court nominations during presidential elections years.
"So what's the difference? Well, there is a sharp difference in our nation's history depending upon whether the Senate is controlled by the same party as the president or a different party from the president. So of the 29 times in history, 19 of those times the Senate and the presidency work were controlled by the same party. When that happened, the Senate took up and confirmed those nominees 17 of the 19 times. [...]
"On the other hand, what happens when the president and the Senate are of different parties? Well, that's happened 10 times in our nation's history. All 10 times, the president has made a nomination. But in those circumstances, the Senate has confirmed those nominees only twice. 2016 was one of those examples."
"Democratic members of this body have long championed judicial activists who would embrace a view of the Constitution that I believe, would do serious damage to the constitutional liberties of the American people. [...] In 2016, Hillary Clinton promised to nominate justices just like the kind that the Democratic leader said he wanted to see. President Trump promised to nominate justices, quote, ‘in the mold of Justice Scalia and Justice Thomas.' And the American people had that issue squarely before them, and the voters [said] that we wanted constitutionalist judges nominated to the Supreme Court. But not only in the presidential election, but the Senate majority. The American people voted for a Republican majority in the Senate in 2014. The American people voted for a Republican majority again in 2016. In 2018 the American people grew our majority. In all three of those elections the question that the Democratic leaders put forward was directly before the voters. What kind of justices do you want? The voters clearly decided and had given a mandate. [...]
"The president has said he's going to nominate a justice this week, that's the right thing to do. And this body, I believe, will take up, will consider that nomination on the merits. And I believe we will confirm that nominee before Election Day. That is consistent with over 200 years of Senate precedent from both parties."
In response to Democrats' threats to "pack the Court," I proposed an alternative amendment to make clear that "packing the Court is a bad idea," saying:
"We have heard multiple Democrats say that if the Senate confirms this nominee and the Democrats take a majority, that next year, they will try to add two or four or who knows how many justices to the Supreme Court. Well, you know, there was another Democratic president who tried to do that, FDR, even though he had a super majority, the Democratic Congress rejected his efforts, as an effort to politicize the Supreme Court. Since the Democratic leaders believe we should follow the wishes of Justice Ginsburg, I think it's worth reflecting on what Justice Ginsburg said about this. She was asked in an interview with NPR and her statement was as follows, quote, ‘Nine seems to be a good number. It has been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court.' Well, unfortunately, it seems the Democratic leaders and Democratic Senators are repeating the partisan mistakes of their predecessors threatening the Court and threatening to pack the court, which would be truly a radical and bad idea as Justice Ginsburg explained.
"We are sadly seeing one side of the aisle embrace more and more dangerous and radical proposals, including trying to use brute political force to politicize the court. That is not consistent with the Constitution, nor is it consistent with two centuries of this body's precedents."