If it achieves nothing else, the Senate Republicans’ filibuster of Chuck Hagel inaugurated the age of Ted Cruz. The day after the vote, the New York Times, Politico, and the Washington Post ran versions of the same Cruz profile. By accusing Chuck Hagel of lying on his disclosure forms and building consensus for a one-week delay—just a few more documents, please—Cruz had made enemies out of everyone on the conservative blacklist. South Carolina Sen. Lindsey Graham said Cruz had acted “out of bounds.” Missouri Sen. Claire McCaskill, viewed by the right as an accidental senator who rigged the Republican primary to make sure she’d face Todd Akin, compared Cruz to Joe McCarthy.
That was exactly what Cruz wanted. All of it. Portraying his opponents as traitors-in-training has been Cruz’s shtick since he started running for Senate three years ago. On Friday, Jane Mayer dug into her 2010 notebooks and found Cruz telling an Americans for Prosperity crowd that Harvard Law School, in the early 1990s, employed 12 professors “who would say they were Marxists who believed in the Communists overthrowing the United States government.” Cruz’s old professors, reached by Mayer, had no earthly idea what he was talking about. The Huffington Post borg repackaged this story with the headline “TED MCCARTHY,” and the resultant comment thread outpaced the one beneath “LOOK: What Women Really Look Like Naked.”
Cruz pulled this off with less than two months of experience in elected office. Before winning the Senate seat in Texas, he’d worked on the legal team for George W. Bush’s presidential campaign, and there his political resume ended. Cruz’s reputation, and his campaign pitch, grew out of his years as Texas’s solicitor general. Cruz argued nine cases in front of the Supreme Court, starting with Frew v. Hawkins, when he was just 34 years old.
In transcripts from those cases, Cruz sounds just like the senator who’s making life agony for Chuck Hagel. The difference is that he’s usually losing. There are no doddering ex-senators waiting patiently for their turns to talk, or journalists raring to write another “Great Republican Hope?” piece. In their place: justices who want to shred his argument.
Frew v. Hawkins, for example, was a disaster for Cruz. The state had given him a weak case: It was arguing that federal requirements for improving health care didn’t apply to Texas, because of state sovereignty guaranteed by the 11th Amendment. Cruz’s own arguments foreshadowed some of the theories that would become conservative gospel in the Obama years. In 2004, they were met with a wall of laughter.
“I will point out if signing a consent decree is a waiver of 11th Amendment immunity or sovereign immunity, then plaintiffs' argument proves too much,” said Cruz. “It means every consent decree is utterly immune from Ex Parte Young. It means once a consent decree is there, the requirements of Federal law don't matter.”
“Only with the state attorney general,” joked Antonin Scalia.
Texas lost 9-0. His first notable, partial win came with Latin American Citizens v. Perry, the suit brought against the state for a mid-decade gerrymander. By a 5-4 margin, the court’s liberals upheld the mid-decade gerrymander, but struck down a district along the Rio Grande—the 23rd district—that had apparently been drawn to minimize the Latino vote. Anthony Kennedy, siding with the liberals, wrote the decision. He also gave Cruz hell about the map.
“Do you want this court to say that it's constitutionally permissible to take away a number of minority voters from the district, but leave just enough so that it looks like a minority?” Kennedy asked. “Is that a permissible use of race? It seems to me that's an affront and an insult.”
“Except the district court found as a factual matter that what happened in district 23 was wholly political,” said Cruz. “It was not racial, so that the voters were not removed because of race. They were removed because of politics.”
“But the additional finding is that 50 percent were kept to make it look good,” said Kennedy. “As this court has said, the legislature will always be aware of the racial composition of a district.”
In 2013, away from the bench, Cruz doesn’t have to be so cagey about race and politics. “Democrats and the media are afraid of Marco Rubio because he is a smart, intelligent, conservative Hispanic,” he told reporters in Texas this week. At other times, he’s accused President Obama of wanting immigration to fail, so Democrats can hold onto the issue and call Republicans racist.