Texas Senator Ted Cruz clerked for then-Chief Justice William Rehnquist, argued before the Supreme Court nine times, and was Texas’s Solicitor General. One might suspect he knows a thing or two about the Constitution.
But his knowledge of that document appears to be lacking – and his own constituents in Texas may end up paying the price.
Although three judicial nominees to longstanding Texas vacancies are set for a hearing next week, Senator Cruz has doubled down on his position that the Republican-controlled Senate should “not confirm a single nominee—executive or judicial—outside of vital national security positions” until President Obama rescinds his recent executive order on immigration.
Senator Cruz himself recommended these nominees to the president, and two of the three would fill benches considered “judicial emergencies” because of overwhelming caseloads in the Southern District of Texas. But the most striking thing about Cruz’s position is that it’s based on a bizarre and obvious misreading of the Constitution.
In a recent Politico Op-Ed, Cruz claimed that holding nominees hostage “is a potent tool given to Congress by the Constitution explicitly to act as a check on executive power. It is a constitutional power of the majority leader alone, and it would serve as a significant deterrent to a lawless president.” Then, responding to CQ Roll Call today, Cruz’s spokesperson said that “Sen. Cruz stands behind what he said” in Politico and that “holding nominations is a constitutional power given to Senate leadership and it is up to leadership to exercise that power.”
The problem is that while the Constitution empowers the full Senate to provide “Advice and Consent” on nominations, it makes no mention of Senate leadership, nor does it confer power to “hold nominations” on any individual senator—majority leader or otherwise. And there is no basis to claim that advice and consent exists “explicitly” to deter the president from issuing executive orders completely unrelated to judicial nominations.
There is no question that Senate Republicans have several means of obstructing the president’s nominees if they so choose; that was true even before they became the majority. But it’s misleading at best to give mere partisan obstruction and political gamesmanship the imprimatur of the Constitution. Ted Cruz knows better, and we think the American people do too.