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Trump Nominee Could Solidify Supreme Court's Conservative Direction

STEVE INSKEEP, HOST:

A new book by Senator Ted Cruz could hardly be better timed. Cruz sits on the Senate Judiciary Committee which will consider President Trump's nomination of Amy Coney Barrett to the Supreme Court in a few days. Cruz's book is called "One Vote Away." It's about the Supreme Court. It argues that a single Supreme Court seat can affect constitutional freedoms ranging from gun rights to speech. And we're going to hear from Senator Cruz right now on the program and a little bit more tomorrow.

Senator, welcome back to MORNING EDITION.

TED CRUZ: Good morning, Steve. It's great to be with you.

INSKEEP: You have argued cases before the Supreme Court yourself, I'd like people to know if they do not know that. What does it feel like - that moment when you stand up and you're facing the nine justices?

CRUZ: It is exhilarating and breathtaking. Before I was in the Senate, that's what I did for a living. I was a Supreme Court advocate. I've argued nine cases in front of the court. And one of the things that's quite striking is that when you stand at the podium, the Supreme Court bench is actually quite close to you. It's much closer than most other courts. You could practically reach out and shake the chief justice's hand. You're that close. And you're in this beautiful, enormous courtroom with 24-karat gilded gold ceilings and freighted with history, and you have nine of the smartest, most dangerous judges on earth right in front of you firing questions at you the entire time.

INSKEEP: They feel no obligation to let you finish, do they? They will jump in with a question at any moment.

CRUZ: It - that's really what makes it so challenging and exhilarating, is you're getting questions from all nine, often simultaneously. And in a contested case, they're coming from very different positions, so their questions are not only trying to show the weakness in your case, but they're trying to persuade each other through asking you questions that decimate your case. And so you have to be very quick. You have to anticipate what's coming, and you try to work to assemble five justices, which is not always - sometimes that breaks on an ideological line; sometimes it does not.

INSKEEP: Yeah. I noticed that there are some instances where you lost more conservative judges with your more conservative argument but gained more liberal judges in this book. You express a concern, actually, Senator, that some justices appointed by Republican presidents have, in key cases, drifted away from your view of the Constitution. John Roberts maybe is the prime example, but you've got a couple of others. Do you think that Amy Coney Barrett is going to be more reliably conservative as you see it?

CRUZ: Well, I certainly hope so. I think she's a strong nominee. The last chapter of the book addresses Supreme Court nominations, and it goes through the history of them, starting with Dwight D. Eisenhower. And what it lays out is the Democrats, over the decades, have been very consistent. They've batted nearly a thousand. Almost every Democratic nominee votes exactly as the Democratic president who appointed them would have wanted in virtually every case.

Republicans have a much lousier record. We bat .500 at best. And if you look at the justices who remain faithful to their oaths, who remain consistent with the Constitution - people like the great Justice Antonin Scalia, people like Clarence Thomas, people like Sam Alito, people like my former boss Chief Justice William Rehnquist - there's a consistent pattern. Those who are faithful to the Constitution and stayed steady, they had a long-proven record before they were appointed. They'd often served in the executive branch. They had defended the Constitution vigorously, and they had been criticized. They had been pounded by the press and hadn't wavered, hadn't given in.

INSKEEP: Does Barrett fit that model, Senator?

CRUZ: In many respects, she has a impeccable background. She graduated (inaudible) in her class from Notre Dame Law School. She spent 20 years as a law professor at Notre Dame. She was a law clerk to Justice Scalia. She's been one of the most respected federal appellate judges in the country for the last several years. And she's also a mom of seven, which I can't even imagine doing just that, much less doing that on top of everything else she's done.

And she's also endured, particularly when she when she was nominated three years ago to the Court of Appeals - I think she endured a really unfair grilling and pounding from Senate Democrats who attacked her for her faith. And I think she handled herself quite well, so I think she has strong attributes. My preference is always someone with a longer proven record, but I think she will make a strong justice.

INSKEEP: Very briefly, why do you think it is that some of these previous justices, brilliant lawyers appointed by Republican presidents, keep ending up in key cases with a different view of the Constitution than yours? Is it possible your idea of the Constitution is a little off?

CRUZ: Well, there is an alternative, which is they only grow one direction. They grow to the left, and they grow the way the press wants them to. And you know, for years, as you know, the Supreme Court reporter at The New York Times was a woman named Linda Greenhouse, and they actually named a syndrome after her. They called it the Greenhouse effect because you would have justices like Anthony Kennedy and Sandra Day O'Connor who would consistently move left because they'd get praised in the pages of The New York Times. In my view, judges and justices should be following the law and the Constitution, shouldn't be seeking out adulation from the press.

You know, the way the book is structured, each chapter of the book addresses a different constitutional liberty. There's a chapter on free speech. There's a chapter on religious liberty. There's a chapter on the Second Amendment.

INSKEEP: Yeah.

CRUZ: There's a chapter on elections and democracy and Bush v. Gore. I was part of the legal team that litigated Bush v. Gore, and we could well see similar litigation for this election. And what I do, Steve, in each of the chapters, is...

INSKEEP: Let me stop you for a second there. Senator, forgive me.

CRUZ: Yeah.

INSKEEP: We're going to be able to talk about this a little bit more tomorrow, but I want to get in one more question in the minute we have...

CRUZ: Sure.

INSKEEP: ...Today because you recall in the book, too - and we're going to talk about the election tomorrow for sure. But 2016, you recall when Antonin Scalia died. And you drafted a statement, quote, "calling on the Senate to hold the seat vacant," to let the voters decide. And you wrote, for the past 80 years, no Senate had confirmed a Supreme Court vacancy that had occurred in an election year, quote, "We should not be the first." In about 30 seconds, Senator, why is that OK now?

CRUZ: Because the history and precedent shows 29 times there have been vacancies - Supreme Court vacancies during presidential election years, presidents have nominated individuals to those vacancies all 29 times, both Democrats and Republicans. Nineteen of those times, the president and the Senate have been of the same party, the Senate...

INSKEEP: You're making - forgive me. We've heard the partisan argument on the air. You made a different argument at the time. You said this should not be done at all in an election year, Senator.

CRUZ: Steve, that's simply not accurate if you let me finish with the precedent. The precedent is...

INSKEEP: Got about 15 seconds - go ahead.

CRUZ: Of the 19 times, the president and Senate were of the same party. Seventeen of those were confirmed. On the other hand, 10 of those times, the president and Senate were of different parties. The Senate only confirmed two of them. The precedent is the checks and balances matter, and there's the difference between justices.

(SOUNDBITE OF OMAR KLEIN'S "SLEEPWALKERS")

INSKEEP: Senator Ted Cruz - the first of two discussions about his book "One Vote Away" - the next is tomorrow.

(SOUNDBITE OF OMAR KLEIN'S "SLEEPWALKERS") Transcript provided by NPR, Copyright NPR.