Reminding America that Donald Trump isn’t the only Republican who continually outdoes his own outrageousness, Ted Cruz today floated the idea that the Senate should stonewall any Supreme Court justice whom President Hillary Clinton nominates. And, true to Trump’s old nickname for him, he lied while doing it.
Asked about the Supreme Court at a campaign event, Cruz said, “There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job, that’s a debate that we are going to have.”
Cruz’s statement is but the latest in a spate of outrageous threats to come from the GOP. First, John McCain made a similar—but in retrospect, modest-seeming—statement that Senate Republicans would be united against any Clinton nominee, a claim he subsequently moderated.
Then came the chorus of conservative media calling for Clinton to be impeached.
What’s next—armed rebellion? Oh right, that too, thanks to former congressman Joe Walsh, who tweeted that he’d be “grabbing my musket” if Clinton wins the election.
But Cruz’s bluster was distinguished by its duplicity.
First, Cruz misquoted Justice Breyer, who had said, in a television interview, that “the mechanics works about the same” with a 4-4 split as with a 5-4. That’s not saying anything about the court’s ability to do its job. It’s an accurate depiction of the court’s ideological split. As we saw at the end of last term, the court sometimes split 5-3 when Justice Kennedy voted with the liberal wing, and tied 4-4 when he voted with the conservative wing. The latter situation, in which the court leaves the lower court’s ruling intact, can be functionally similar to a 5-4 vote.
But it would be preposterous to understand Justice Breyer as commenting on the “ability of the court to do its job.” That’s not what he was talking about at all.
On the contrary, as Cruz surely knows, the effects of the Senate’s stonewalling have been disastrous for the Supreme Court and for courts throughout the federal system.
The Supreme Court has been devastated by the Senate’s inaction. It procrastinated deciding 22 cases until the last three weeks of last term. It sloppily accepted, then rejected, part of a death penalty appeal. And while justices have tied themselves in knots trying to achieve consensus where possible, the court deadlocked on crucial cases on immigration, unions, and banking law—literally failing “to do its job,” which is to decide such cases.
And it’s not just the Supreme Court. The Senate has quietly stonewalled judicial appointments throughout the system, causing a “judicial emergency,” a term not of political rhetoric but of a federal designation of reality. The term refers to courts with judicial caseloads are so high that they endanger access to justice. The number was 12 at the beginning of 2015 and is 36 today.
It’s because Senate Republicans have confirmed only 18 of President Obama’s district court nominees since 2014, compared with 58 confirmed by the Democrat-led senate in President George W. Bush’s final years. Egged on by millions of dollars of dark money that traces back to Republican insiders Ann Corkery and funders Paul Singer and the Templeton Foundation, the Senate has crippled the federal judiciary as a whole.
And Cruz, of course, has been right at the center of it. He knows how many judicial emergencies there are, and how the Supreme Court itself has been affected. He’s just lying.
Finally, Cruz is dissembling when he says “there is long historical precedent for a Supreme Court with fewer justices.” It is true that the court used to have fewer members. But never has the court had a vacancy as long as this year’s, and never has anyone proposed simply shirking the Senate’s constitutional duty to provide advice and consent on presidential nominees.
Indeed, for such a supposed constitutionalist, Cruz’s statement is constitutional treason: He’s proposing to simply ignore the Appointments Clause: “The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” Shall, not may.
And for such a supposedly religious man, Cruz has proposed flagrantly violating the Second Commandment, which prohibits taking the name of God in vain. It’s not just “doing your job,” after all, to fulfill the requirements of the constitution. When senators swear on a Bible to uphold their oath of office, they’re taking a sacred oath, in the name of God.
Which Senator Cruz now proposes to ignore.
Of course, Cruz’s statements are part of a political campaign, and they’re easy to discount. Like Trump’s sudden switch from “very pro-choice” to ardently pro-life, Cruz’s raising of the Supreme Court issue is meant to mobilize the Republican base, parts of which are disgusted by Trump and are considering staying home. Just as Trump’s campaign wants these voters to hold their nose and think of the Supreme Court, so does Cruz.
We should also see Cruz’s comments as laying the groundwork for an intra-Republican battle over confirming Merrick Garland after the election. With moderates already pointing out that Justice Garland is likely to be more moderate (and older) than a fresh pick from Clinton, Cruz is staking out more radical ground: that the alternative could be no one at all. As usual, Cruz is triangulating against his own party.
There are two reasons this stance might backfire, though.
First, while stonewalling the Supreme Court plays well with the base, it infuriates swing voters. A study released in July showed that in 10 states with vulnerable GOP incumbents, 41 percent of voters said they were less likely to vote for senators who opposed giving Garland a hearing, with about 24 percent more likely to do so. Those numbers may just be counting the already-committed, but it shows a remarkable split in those critical races.
Indeed, one poll found that 65 percent of Americans favor giving Judge Garland a hearing—81 percent of Democrats, 56 percent of independents, and 55 percent of Republicans. If Republicans really want to make Senate elections a referendum on the Supreme Court, the numbers say that they’ll lose.
Second, if Senate Republicans were to follow Ted Cruz into uncharted territory here, the unthinkable option of a recess appointment suddenly becomes that much more thinkable. Pursuant to the Recess Clause of the Constitution, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
There is precedent for doing so: President Eisenhower did this in 1956, when the Senate was in recess, installing Justice Brennan on the Supreme Court. (He was confirmed when the Senate returned in 1957.) And while the Senate can remain in “pro forma session” to avoid a formal recess, the one time it can’t do that is when a new Senate has been elected but not sworn in. In other words, there’s a window.
Of course, as the Constitution says, the recess appointment only lasts until the end of the next legislative session. But that’s two years, during which time Justice Garland serves on the Supreme Court, absent any congressional action whatsoever. And not just Garland—President Obama could name recess appointments to the dozens of vacancies in the federal system.
That would be, to put it mildly, a contentious act. But with Republican Senators going on record in favor of a permanent stonewall, the outgoing president would have ample cover to do something, anything, to end the judicial emergency they have created.
Editor’s Note: This story was updated on Thursday, Oct. 27, 2016 at 8 p.m. to reflect increased numbers on judicial emergencies and district court confirmations.