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From an interview with Ted Cruz about Supreme Court appointments, Bloomberg, December 2015:

Ted Cruz says Republicans have “an abysmal record” when it comes to picking Supreme Court justices, and it is something the Texas senator promises to rectify if he's elected president.

Cruz, who argued cases before the Supreme Court as the solicitor general of his state and has taught law school classes on the art of presenting cases to the high court, told Bloomberg Politics in an exclusive interview in Iowa on Monday that his party has a knack for picking eventual heretics who side with liberals on divisive issues.

As examples, he cited Chief Justice John Roberts, an appointee of President George W. Bush, who rejected a challenge to President Barack Obama's health care law in 2012, and Justice Anthony Kennedy, a Ronald Reagan appointee, who voted in 2015 to make same-sex marriage a constitutional right. Both cases were decided 5 to 4.

“Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative,” Cruz said.

. . . “The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.”

As examples he cited Justices William Brennan, Earl Warren, John Paul Stevens, David Souter, and Harry Blackmun. All were appointed by Republican presidents and sided with liberal justices on some important issues; Warren and Stevens went on to become leaders of the court's liberal wing.

. . . Presidents Bush took the “easy way out” by picking Souter and Roberts, Cruz said. “They didn't want to spend the political capital trying to confirm a proven conservative.” As examples of principled conservative justices he'd model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.

Presidents who are actual Conservatives, or Presidents anything-like actual Conservatives, routinely put Progressives on the court, and their chances of deliberately appointing a conservative justice is no better than flipping a coin. Cruz’s candid take on that is that they aren’t willing to spend their political capital to move their nominations through the gauntlet.

Marc Thiessen, Washington Post, on the gauntlet itself:

. . . Another factor is that liberal Supreme Court nominees can tell you precisely how they stand on key issues and still get confirmed. In her 1993 confirmation hearings, Ginsburg declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3. Breyer declared abortion a “basic right” and was confirmed 87 to 9. Imagine if a conservative nominee said the opposite? His or her confirmation battle would be a nuclear war.

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy. And as we have just seen, those philosophical statements do not necessarily indicate how they will vote on the bench. During his confirmation hearings, Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.” This was taken as a promise that, as Bush put it, “he’s not going to legislate from the bench.”

Donald J. Trump isn’t conservative to begin with, and he doesn’t suffer any ideological imperative to appoint conservative justices. The only reason to believe he would even attempt to appoint conservative justices is that he’s given his word — he’s promised to appoint conservative justices in exchange for conservative political support — which would have more value if he had the ability to name potential appointments without being handed a list and told how to pronounce the names on it.

He’s also a “deal-maker.” He’s expressed enthusiasm for working across the aisle to make such great deals you wouldn’t believe.

I think it’s reasonable to expect a hypothetical President Trump to, in the end, nominate people for the Supreme Court that he thinks he can get through. Those people will be, in the end, “consensus” nominations. I don’t have any reason to believe that he would spend his political capital on a truly onerous, conservative appointment, or that he would, under any circumstances, exceed the abysmal record of previous President’s who actually cared.



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