The Nuclear Option: Ted Cruz’s Supreme Court Threat Guarantees a Radical Nominee


Sen. Ted Cruz is one of those people who constantly wrestles with the Constitution — and always wins.

In his latest declaration to mount the barricades in defense of the Constitution, the Texas senator said he will “absolutely” filibuster any nominee the president puts forward to replace the late Supreme Court Justice Antonin Scalia.

“The Senate’s duty is to advise and consent,” Mr. Cruz told NBC’s “Meet the Press” on Sunday. “We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court.”

Now, I am one of those people who believes the death of Justice Scalia very well may be the tipping point in America where the high court finally, fully and irreversibly embraces anti-constitutional lawlessness. There are examples of disdain for the Constitution throughout history, and especially in the past half-century. But a court without Justice Scalia today will have nothing but hostility for the Constitution. It will exude from every decision of every case.

But how does someone like Mr. Cruz make such a stupid, lazy, self-serving — and, I would argue, unconstitutional — threat such as declaring he will “absolutely” filibuster any nominee the president puts forward? He is saying that, as a member of the Senate Judiciary Committee, he will refuse to even consider any nominee President Obama makes. Isn’t he essentially saying that he is refusing to perform his constitutional responsibility to “advise and consent”?

And then he goes on to say that by refusing to do his job, he and the Senate are advising the president that a “lame-duck” executive is not allowed to “tip the balance of the Supreme Court” in an election year. Not sure where he found that little nugget, but it isn’t in the Constitution. It sounds like something Sen. Charles E. Schumer, New York Democrat, would say talking about the “ideological balance” of the Supreme Court.

The only difference now between Mr. Cruz and Mr. Schumer is that Mr. Schumer and his dastardly Democrats always win, and Mr. Cruz and his hapless Republicans always lose. Remember Mr. Cruz’s gallant vows to “defund Obamacare” with a filibuster on the Senate floor?

With Justice Scalia’s replacement, the stakes are even higher. And it is an area where Republicans have an even greater record of losing. This is because, for 40 years of judicial nomination fights, Republicans bring their very best rules and strategies of checkers to play high-stakes games of chess against Democrats.

Democrats are so successful in this area, they actually have Republicans on the defensive over nominees who simply believe that the Constitution means just what it says and that it is only a “living document” through the constitutional amendment process.

But let’s forget for the moment how constitutionally spurious Mr. Cruz’s threat is that he will refuse to consider any nominee. Let’s just focus on the strategic sense of the very public threat he has made.

By declaring upfront that he will reject any nominee, Mr. Cruz lays the groundwork for President Obama and Democrats to make an absolute mockery of any filibuster that Republicans do ultimately mount. Since they were going to do it anyway, it obviously has nothing to do with the radical nature or lack of merits of the eventual nominee, the Democrats can rightly argue.

In addition to neutering the effectiveness of a filibuster, Mr. Cruz is essentially baiting the president into putting forth the most insanely radical nominee he can conjure up. And, given the Republicans’ record for winning these fights — and especially Mr. Cruz’s record — we innocent citizens can all but guarantee that whatever judicial nut job Mr. Obama sends over will eventually be the one who replaces the great Antonin Scalia.

So why, exactly, would Mr. Cruz make such a reckless threat at this crucial moment in America? Would it have anything to do with the fact that he happens to be running for president right now and desperately needs to stir up votes in South Carolina this weekend?

Earlier I said Mr. Cruz always loses while Mr. Schumer always wins. I should be more precise. Actually, Ted Cruz always wins. Personally, anyway. It is Republicans and conservatives who always pay the price and lose.

Charles Hurt can be reached at Follow him on Twitter at @charleshurt.


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