Why Sen. Ted Cruz gets rewarded for saying a lot of things that no one would take seriously anywhere else.
Photo by Joshua Roberts/Reuters.
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.
During his campaign, Cruz didn’t talk much about Latin American Citizens v. Perry. His biggest victory, the one he featured in campaign ads, was Medellin v. Texas. It was a simple story: A Mexican murderer had tried to use the Geneva Convention to wriggle out of a death sentence. In Avena and Other Mexican Nationals, the International Court of Justice had ruled for Medellin. In 2008, a 6-3 majority of justices sided with Cruz and against Medellin.
But that took some doing. The case first arrived at the court in 2005, as Medellin v. Dretke, a suit brought against the Texas Department of Criminal Justice. Cruz argued that neither the ICJ judgment, nor a memorandum from George W. Bush, overruled the state’s law.
“The president of the United States has issued a document where he says, ‘Exercising my foreign-affairs power, in my opinion the treaty. … I accept the meaning of the treaty as set forth by the ICJ and apply it to these 51 cases,” said Stephen Breyer. “So he's deciding that. And why doesn't he have the authority to decide what that treaty means in these circumstances? That's his decision. And Texas is bound by the Constitution.”
“We would agree that the fact that the president has acted underscores the point made by both Texas and the United States,” said Cruz, “that the responsibility for determining the remedy to the Avena judgment is found in the political branches.” But that proved his point. There was no precedent for using the ICJ as a basis for an American decision.
“Respectfully,” said Cruz, “if we were to lose, and if Medellin were to prevail, his position could potentially open the door to the reconsideration of the over 100 foreign nationals that are on death row across this country, and, beyond that, to thousands.”
“Well, so could the president's order,” said Justice John Paul Stevens. “The same thing.”
By a 5-4 decision, the court punted and let Medellin continue his appeals. Not long after that, William Rehnquist passed away, and was replaced by John Roberts. In 2008, a stronger case won out with a new court. That victory made Cruz a national conservative star. In a roundabout way, it was cited in his major SCOTUS disaster. Cruz represented five states in Kennedy v. Louisiana, arguing for the constitutionality of a law that allowed the death penalty for child rape. He lost 5-4.
The transcript of that loss portrays a snarkier Cruz. “Blackstone actually talks about how rape under Saxon law was punishable by death,” he said, laying out the moral standard—not international laws!—buttressing his case. “There was a period in 1285 where the punishment was relaxed to loss of the eyes and testicles. That was William the Conqueror's kinder, gentler version.”
He wasn’t as fond of the modern Brits. The “Law Lords,” members of the House of Lords, had submitted a brief against the Louisiana law. “That brief, to my mind, embodied all of the dangers of the very broad arguments that we're being presented in Medellin, that ultimately the Constitution and the people of this country determine what is permissible and what is lawful,” said Cruz. “This court has chosen to look to other nations for guidance, but that brief didn't say this is guidance. That brief said the United States is foreclosed from ever doing this because other nations have made determinations under their law.”
The court didn’t make much of that point, but it ruled against the state anyway. The defeat was the only somewhat useful negative attack that Cruz’s 2012 primary opponent could come up with. But once he entered politics, Cruz’s fireworks and dazzle simply worked. If you fail to impress a judge or court, you lose the case. No real upside. If you try the same tactics in the Senate, you might constantly end up on the losing side of votes. But you gain a following. You win with the media. There’s a lesson here, and Cruz has learned it with quicksilver speed.
David Weigel is a Slate political reporter. You can reach him at email@example.com, or tweet at him @daveweigel.