For Cruz, court has been key to career
WASHINGTON — When Ted Cruz was the Texas solicitor general, the case he describes as his biggest had an unlikely adversary: George W. Bush.
In 2007, after the rape and murder of two teenage girls in Houston, Bush had bowed to an International Court of Justice ruling that the rights of a defendant — a Mexican citizen — had been violated when he was denied a request to contact the Mexican Consulate.
Cruz, 36 at the time, already was a repeat player at the U.S. Supreme Court. Warnings sounded that Americans abroad could die if the United States ignored treaties. But Cruz argued that a strict interpretation of separation of powers in the Constitution prevented Bush from acting on his own to block the execution of 32-year-old Jose Medellin.
“This is a very curious assertion of presidential power,” Cruz said in court. “In over 200 years of our nation’s history, I’m not aware of any other directive from the president directly to state courts and state judges.”
In a 6-3 opinion, the court
ruled for Texas. Medellin was executed. Later, Cruz wrote that “the Medellin victory was profound for me because our argument had gotten to the heart of how I understand our government.”
That case and others Cruz handled during more than five years as the state solicitor general — a productive and defining period in his life — offer a primer on his evolving views on governing, religion and society in a period that helped shape the candidate who has climbed to the top tier of Republican presidential hopefuls. Cruz’s time as solicitor general enabled him to lay a foundation for his presidential quest by arguing gun rights, embracing red-meat social issues and winning symbolic cases like preservation of the Ten Commandments monument on the Capitol grounds in Austin.
Cruz often points to this period in his life, including during last week’s GOP debate.
“Listen, I’ve spent my entire life defending the Constitution before the U.S. Supreme Court. And I’ll tell you, I’m not going to be taking legal advice from Donald Trump,” he said in a testy exchange with the billionaire.
‘Brutalism’
Many of the evangelical and hard-right voters backing Cruz came to know the articulate, hardcharging young Texan through litigation in the high court.
“Conservative and libertarian legal people were well aware of Ted Cruz and the fact that he was not just involved in high-profile legislation but also coming up with some creative legal theories,” said David Bernstein, a law professor at George Mason University.
Cruz’s merciless approach has opened him to scrutiny as well. Citing Cruz’s work as a lawyer for Texas, a New York Times columnist with conservative credentials last week referred to Cruz’s “brutalism,” arguing that he lacks compassion.
In a 2004 case, Cruz argued in the Supreme Court against leniency for a Texan who’d been in prison for six years for a crime that carried a maximum sentence of two years.
The man, Michael Haley, who had swiped a calculator from a Wal-Mart, had been wrongly sentenced under Texas’ habitual criminal law, and lower courts had ordered him released. That would be bad precedent, Cruz contended. Justice Anthony Kennedy sounded incredulous.
“So a man does 15 years so you can vindicate your legal point in some other case? I just don’t understand why you don’t dismiss this case and move to lower the sentence,” he said.
The justices ruled that lower courts should have considered Haley’s claim of poor legal counsel before sentencing. He got out of prison.
In a death penalty appeal in 2007, Cruz argued that Texas should be permitted to execute a paranoid schizophrenic who had killed his wife’s parents. A psychiatric evaluation found the man, Wisconsin native Scott Panetti, was delusional and believed he faced execution “to prevent him from spreading the Gospel.”
Kennedy wasn’t persuaded when Cruz acknowledged the state had refused to extend the time for Panetti to build his case.
“You gave him one week, and there were no funds for his own psychiatrist,” Kennedy said.
Cruz asserted that Panetti understood that he committed two murders.
“That’s different from having a rational capacity to understand the nature and justification for the punishment,” Kennedy said.
In a 5-4 ruling written by Kennedy, the court ruled that the U.S. Fifth Circuit Court of Appeals had wrongly considered Panetti’s mental illness irrelevant. More than 20 years after he was sentenced, Panetti remains on death row.
Dennis Goldford, a political scientist at Drake University in Des Moines, Iowa, has watched Cruz’s appeal to would-be supporters in the state that will open the primary season Feb. 1. Goldford believes Cruz’s followers won’t be swayed by characterizations of the Texas senator as lacking compassion.
‘Symbolically resonates’
“His base is evangelicals and conservatives for whom the Constitution is the secular equivalent of God. When he talks about defending the Constitution, it symbolically resonates with them as someone who is going to defend the word of the Bible,” Goldford said. “With them, Cruz can plug in God and the Constitution almost interchangeably. And he does.”
In 2002, Cruz, a Princeton debate whiz and Harvard-educated lawyer, languished in the Bush administration.
In September of that year, as head of the Federal Trade Commission’s planning office, Cruz testified in front of a U.S. House subcommittee about the potential benefits of ecommerce for people buying caskets and wine.
Five weeks later, Greg Abbott was elected Texas attorney general, and Cruz’s life changed.
Cruz applied to become solicitor general. He wasn’t optimistic, he would say later, having argued just two cases in court, neither in front of the Supreme Court.
But Abbott selected Cruz, just 33, and together the two of them transformed the four-year-old solicitor general’s office into a hub of conservative activism.
‘Conservative principles’
In “A Time for Truth,” the book by Cruz published last year, he recalled how Abbott’s mandate to him went well beyond defending the state of Texas.
“I want you to look across the country, and if you we can step up, defend conservative principles and make a meaningful difference, go do it,” Cruz recounted Abbott as saying.
James Ho, who succeeded Cruz as solicitor general, said Cruz made a mark.
“He became a role model to a whole generation of young constitutional lawyers who looked up to the Texas solicitor general’s office under his watch.”
Yet many Texans had little idea at the time what Ted Cruz was up to, said Cal Jillson, a Southern Methodist University professor and political analyst.
“It’s an invisible office to most Texans,” he said. “His name almost never came up. The spotlight was taken up by his boss, Greg Abbott.”
Cruz’s courtroom skills are not questioned, Jillson said, but he added: “Debate and litigation is a narrow slice of what a president is responsible for, and that’s where the doubt comes in. Does he have the ability to take Ronald Reagan’s twothirds of a loaf and come back later for the rest? Or is he a brinksman by nature?” It didn’t begin well. In 2003, in Cruz’s first of his eight cases in front of the Supreme Court, he argued that it should be permissible for Texas to renege on an agreement seven years earlier to improve health care for children in low-income families.
Cruz recalled in his book that he spent two months preparing for his argument and when the day arrived, shed his black ostrich boots for wingtips. He was struck, he wrote, that the Supreme Court chamber in which he finally landed was so tiny, about the size of a small basketball court. Justice after justice grilled Cruz about Texas’ weak case. Even Scalia, a reliable supporter of conservative positions, responded acerbically when Cruz remarked that Texas had “voluntarily” improved services as a result of a consent decree in 1996.
“You can’t say it was voluntarily,” Scalia interrupted. “They did it because the decree required them to do it. That’s coercive.”
“The justices were ripping me limb from limb. I felt like a chunk of tuna thrown to a school of sharks,” Cruz recalled in his book. “It was pretty clear that the court was going to rule against me.”
It did, 9-0.
Chose wisely
Afterward, Chief Justice William Rehnquist, for whom Cruz had clerked seven years before, told him: “Well, they say that with your first argument, you should pick a case you can’t lose or you can’t win. Ted … I think you chose wisely.”
Ten Commandments
Cruz reminds campaign audiences how he prevailed in 2005 when a destitute Unitarian who had lost his law license nearly succeeded in having the Ten Commandments monument removed from the northwest quadrant of the Capitol grounds in Austin. Abbott argued that case in front of the Supreme Court.
Cruz submitted a brief describing the monument’s contribution to the development of Western civilization and legal codes, adding that “it would not be perceived as an endorsement of religion.”
A 5-4 decision written by Rehnquist recognized the Ten Commandments historical meaning and ruled that the monument couldn’t be removed under the part of the Constitution separating church and state.
Recalling the case in Iowa last year, Cruz told a religious rally: “Never have the threats been greater to religious liberty than they are right here and now today.”
In 2006, Cruz prevailed in a challenge to the Texas Legislature’s congressional redistricting plan.
In oral arguments, Justice Kennedy asked Cruz if he wanted the court to say it’s OK under the Constitution to take away minority voters from a district “but leave just enough so that it looks like a minority.”
Cruz replied bluntly that it was not racial.
“They were removed because of politics,” he said.
The court held in another 5-4 ruling that the remap did not violate the Constitution — but that the part of the plan in the San Antonio-area District 23 violated the Voting Rights Act by denying Latinos the opportunity to elect a candidate of their choosing.
Per Abbott’s directive, Cruz strayed far afield. He leaped to the defense of California children’s right to say “under God” in the Pledge of Allegiance, filing a friend-of-the-court brief in the Supreme Court on behalf of Texas and other states.
A Cruz ad that began running in Iowa after Christmas asserts that he “stood up for the Pledge of Allegiance” as well as for the Ten Commandments, the Texas Capitol pictured in the background.
Cruz often brings up gun rights and his role on the edges of the landmark 2008 Supreme Court ruling that the Second Amendment ensures the right to possess a gun for self-defense.
The District of Columbia case had no connection to Texas, but Cruz submitted a brief on behalf of Texas and 30 other states arguing the handgun ban in the nation’s capital infringed on the Second Amendment.
Not without humor
In the debate last week, Cruz referred to the case as evidence of his bona fides as a pro-Second Amendment warrior.
“Listen, in any Republican primary, everyone is going to say they support the Second Amendment, unless you are clinically insane,” he said. “I would note the other individuals on this stage were nowhere to be found in that fight.”
Cruz’s courtroom skills at times include humor.
Arguing the Ten Commandments case in the appellate court, Cruz observed that the wording had been composed by a priest, a minister and a rabbi.
One of the federal judges interrupted: “That sounds like the opening of a joke.”
“Yes, your honor,” Cruz replied, “but I’m pretty sure no one walked into a bar.”