Texas Senator Ted Cruz was on Hugh Hewitt’s show today to talk Supreme Court and the Senate in general. Full Disclosure– I was a Cruz supporter up until the day he dropped out. Full interview sound file is at the bottom of the page.
HH: But I want to begin, I want to begin with Chuck Schumer on MSNBC last night with Rachel Maddow, cut number 2:
CS: It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support. So you’re right.
RM: And so you would do your best to hold the seat open?
HH: Senator Cruz, you’re on the Judiciary Committee. Does the Reid Rule apply to Supreme Court nominees?
TC: Well, look, what Chuck is saying there is not surprising at all. I think the election has had the effect of really radicalizing Democrats. I think Democrats, the lesson they’re taking is that they think Hillary was too moderate, and that they need to be more Bernie Sanders, and more Elizabeth Warren. And so I think you’re going to see an awful lot of Democrats following Chuck Schumer’s lead and simply screaming no at everything, trying to stop at everything. I think no matter who President-Elect Trump nominates to the Supreme Court, I think the Democrats are going to fight tooth and nail, and I think it is incumbent on Republicans in the Senate to hold the line, to stand together, and we’ve got to deliver on the promises we made.
HH: And that means, does it not, that 51 votes will be used to confirm a Supreme Court justice if necessary?
TC: Well, the current status of the rules is that Harry Reid used the nuclear option, which meant he blew up the rules of the Senate and lowered the threshold for confirmation from 60 votes to 50 votes. And he did that for every executive nominee, and he did that for every judicial nominee except the Supreme Court. That was a small, little area that they carved out. And so for the vast bulk of the nominations that we’re going to deal with in the next several months, the threshold is 51. Now there are 52 Republicans in the Senate. If we stand together, we can confirm our nominees, which is why, and I think we’re going to see some bloody fights over the next several weeks and couple of months. And I think the biggest reason for that is the Democratic base, the far left, demands it. They demand blood, and so you’re going to see, we’re already seeing the beginnings of it, some nasty accusations, some personal accusations. The Democrats will roll out attacks of racism, because that’s really their one-trick pony. That’s, whenever they don’t like something, they accuse everyone of being a racist, so they’ll do that again. And it’ll get ugly. But once they’re done screaming and attacking and throwing personal insults, it’s going to come time for voting, and on the vast majority of the nominations, it’s a 51 vote threshold, and I believe we’re going to confirm President-Elect Trump’s cabinet. I’m very happy about that. As to the question of the Supreme Court under the existing rules, that’s still under a 60 vote threshold. And what I think is likely, I am hopeful and I believe that the new President is going to nominate a strong, principled conservative to the Court. You and I both understand that there is very little, if anything, more important than that. If and when that happens, I think what is likely is that the majority leader will have hearings, and again, the Democrats will run through a circus of trying to attack whoever that nominee is. And then we’ll move forward to a vote. And what I think the majority leader is likely to do is bring it up for a vote under the ordinary rules, which means we need 60 votes, and give Democrats a chance to see will they be willing to, for the first time in history, try to filibuster a U.S. Supreme Court nominee. We’ll find that out. If they do, I can tell you the sentiments of the Republican conference is that we will confirm the new President’s Supreme Court nominee. The Democrats are not going to succeed in blocking it, and it’ll take a little time to play out to see how exactly that happens.
Cruz is definitely right about the Democrat short term strategy. For reasons of fundraising alone they have to be seen as fighting Trump tooth and nail. But only 51 votes are needed to confirm and right now none of the nominees seem to be under a lot of confirmation pressure… the exception might be Secretary of State-designate Rex Tillerson who may lose the vote of John McCain and, maybe, his minime, Lindsey Graham.
And Cruz goes on to lay out how easy it is to burn down a filibuster if the GOP majority sticks together:
But the rules of the Senate have long provided, so the way you, if something is consistent with the rule or not is a ruling by the chair. And so you can make a parliamentary inquiry. You can ask the chair does it take 60 votes or 51 votes to confirm a nominee for Attorney General. And the chair would look down and say well, under the rules, the answer is 60. And at any point, any ruling of the chair can be challenged. And it could be overturned by 51 Senators. And that’s also written in the rules, that 51 Senators can overturn any ruling by the chair. That’s what Reid did, is inquired of the chair what’s the rule for executive nominations, for judges not Supreme Court. The Chair answered 60 votes. Reid appealed the ruling of the chair, and the Democrats bloc voted together as a party to overturn that, and that ruling then becomes a precedent, which is treated like a new rule.
Cruz then goes on to give Reid credit for Trump’s cabinet and for the next SCOTUS appointments.
…Mike Lee and I and a number of others were discussing it at the time. And we were chuckling, and saying Harry Reid and the Democrats are going to come back just and sorely regret this. And I remember Mike and I predicted, I said this will result in more judicial nominees like Antonin Scalia and Clarence Thomas, and it will result in much more conservative Republican cabinet nominees…
I may not be as sanguine about the GOP caucus growing a spine as I should be. I never underestimate the propensity of the GOP to fold like a cheap suit. But I also get the feeling that even Mitch McConnell is fed up with the way Harry Reid ran his caucus in his latter years when his gay S&M fetish became known and his dementia was very obvious.