U.S. Sen. Ted Cruz is finding a new pressure point in his proxy war with former Florida Gov. Jeb Bush: the decision by Bush's brother to nominate John Roberts, a growing target of conservative scorn, to the U.S. Supreme Court.
Cruz's offensive, however, is shining more and more light on his own past support for Roberts, an issue that flared up during the second 2016 Republican presidential debate Wednesday in California.
Asked by a moderator whether it was a mistake for George W. Bush to name Roberts to the high court — as Cruz had suggested — Jeb Bush noted that Cruz was a "strong supporter" of Roberts at the time, and indicated Cruz was trying to "rewrite history" with his recent criticism of Roberts. In a 2005 op-ed for the National Review, Cruz, then the solicitor general of Texas, offered a vigorous defense of Roberts, urging the U.S. Senate to "confirm him swiftly."
Confronted with that position Wednesday, Cruz ultimately made explicit what he has been hinting at over the past few months, especially in the wake of the most recent ruling from the high court salvaging President Barack Obama's signature health care law. “It is true that after George W. Bush nominated John Roberts, I supported his nomination," Cruz said. "That was a mistake and I regret that."
Yet Cruz's admission speaks to a broader conversation he is hoping to have with his GOP opponents as conservative outrage at the high court metastasizes, particularly following its June decision that legalized gay marriage across the country. Cruz's question to primary voters boils down to this: Which candidate do you most trust to appoint truly conservative judges?
For Jeb Bush, that question comes with its own political complications. Rebuking John Roberts means rebuking George W. Bush, whose legacy Jeb Bush has carefully navigated while presenting himself as his "own man" on the campaign trail. Jeb Bush sought to thread that needle on the debate stage Wednesday, focusing the discussion on the need for presidents to stop appointing jurists "that have no experience so that you can't get attacked."
"John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made clarity the important thing," Jeb Bush said. "That’s what we need to do, and I’m willing to fight for those nominees to make sure that they get passed."
Cruz first rekindled the debate over Roberts on Saturday in St. Louis, where he suggested Jeb Bush's father and brother, both former presidents, shied away from nominating sufficiently conservative jurists to the U.S. Supreme Court. Addressing Phyllis Schlafly’s Eagle Council convention, Cruz asked the gathering of conservative activists to recall "two moments in time that made a world of difference."
"In 1990, in one room, was sitting David Souter, and in another room was sitting Edith Jones, the rock-ribbed conservative jurist on the 5th Circuit Court of Appeals. George Hebert Walker Bush picked David Souter," Cruz said, according to video from the Democratic opposition research group American Bridge. "Let's fast forward to 2005. In 2005, in one room was John Roberts and in another room was my former boss, Mike Luttig, the rock-ribbed conservative jurist on the 4th Circuit Court of Appeals, and George W. Bush picked John Roberts."
Cruz continued: "Now in both instances, it wasn't that they were looking for someone who wasn't a conservative. It's that it was easier. Neither Souter nor Roberts had said much of anything. They didn't have a paper trail. They wouldn't have a fight. Whereas if you actually nominate a conservative, then you've got to spend some political capital. Then you've got to fight."
Cruz went on to rouse the crowd by imagining what would have happened if the Bushes had picked Jones and Luttig over Souter and Roberts, respectively. "Obamacare would've been struck down three years ago and the marriage laws of every state would still be on the books," Cruz predicted.
It was not lost on Cruz's critics that the argument he was making in St. Louis — that presidents should go to bat for conservative judicial nominees with a long paper trail — appeared at odds with his 2005 defense of Roberts, who was nominated having served only two years on the bench. In the National Review op-ed, Cruz dismissed complaints about Roberts' short record, arguing that, among other things, Roberts still had plenty of experience off the bench as a Supreme Court litigator.
Cruz's riff Saturday in St. Louis — a shorter version of which he repeated Wednesday in California — undoubtedly set the stage for a confrontation with Jeb Bush. In the lead-up to the debate, Jeb Bush's campaign did little to mask its indignation with Cruz's reversal on Roberts.
"So [Cruz] is really just a phony? Shocking," top Bush strategist David Kochel tweeted in reaction to a story on Cruz's remarks in St. Louis.
Cruz's souring on Roberts became apparent in June, when the high court issued back-to-back rulings affirming Obamacare and making gay marriage the law of the land. Cruz called the period "some of the darkest 24 hours" in U.S. history and used a swing through Iowa to amplify a call for a constitutional amendment that would subject the high court's justices to periodic judicial retention elections.
Along the way, Cruz did not mince words on Roberts, accusing him in a radio interview at the time of wearing an "Obama jersey" in his latest Obamacare ruling. Speaking with reporters in Orange City, Ia., Cruz went even further, saying that with the decision, Roberts "violated his oath of office and it violated the promise he made to the Senate and the American people to faithfully apply the law."
The comments seemed to mark a shift in his attitude toward Roberts, whom he was reluctant to criticize in the aftermath of the court's 2012 ruling that upheld the Affordable Care Act. While Cruz decried the decision as "shameful" and a "sad day for the court," he would only say at the time that Roberts' role in the ruling was "heartbreaking" and "shocking."
Cruz has described Roberts as a decades-long acquaintance. They share a former boss in William Rehnquist, the former chief justice whom Roberts clerked for from 1980 to 1981 and Cruz from 1996 to 1997. When Rehnquist died in 2005, both Cruz and Roberts were pallbearers at his funeral.
In his book A Time for Truth, Cruz wrote that Rehnquist was "ably succeeded" by Roberts. Cruz's book, which was released in June, also recalled his early encounters with Roberts while working on the Florida recount in the 2000 presidential election race between George W. Bush and Al Gore.
Cruz told the Miami Herald at the time that Roberts' name was the first that came to mind when he was asked to find lawyers to help with the legal battle over the recount. In his book, Cruz said that Roberts, recognizing "what was at stake in Florida," had "jumped on a plane and immediately came down" to pitch in, even making the trip work with an intellectual property case before the high court back in Washington, D.C.
"Roberts was not only a brilliant Supreme Court lawyer, but startlingly low-key and self-effacing," Cruz wrote. "Although he was one of the leading Supreme Court litigators in the nation, he had befriended me several years earlier when I was a baby lawyer. He didn't have to do so, and most people in his position would not. For that, I have always been grateful."