Box Turtle Bulletin

So It’s Come To This: Ted Cruz Is the GOP’s Conscience

I guess it takes a narcissist to take on a narcissist. As William Saletan wrote back in January, the Republican Party is a failed state, and Trump is its warlord.

Old Culture War Soldiers Don’t Even Fade Away

On Friday, President Barack Obama announced that he was nominating Eric K. Fanning as Secretary of the Army. Fanning’s qualifications are pretty solid. He had been serving as undersecretary for the Army since last June. Before that, he was chief of staff for Defense Secretary Ash Carter. His long career with the Pentagon included stints as undersecretary for the Air Force and Navy. He had been a specialist for security matters at the Pentagon for the past two decades, and he also played key roles in overseeing some of the Pentagon’s largest shipbuilding and jet fighter programs.

He also happens to be gay, and if his nomination is approved by the Republican-controlled Senate, he will be the first openly gay leader of a branch of the U.S. military. As far as GOP presidential candidate and former Arkansas Gov. Mike Huckabee, that detail wipes the rest of Fanning’s distinguished career from the record:

“It’s clear President Obama is more interested in appeasing America’s homosexuals than honoring America’s heroes,” the former Arkansas governor said in a statement released by his campaign. “Veterans suicide is out-of-control and military readiness is dangerously low, yet Obama is so obsessed with pandering to liberal interest groups he’s nominated an openly gay civilian to run the Army. Homosexuality is not a job qualification. The U.S. military is designed to keep Americans safe and complete combat missions, not conduct social experiments.”

Texas Sen. Ted Cruz, who’s also running for the GOP presidential nomination, isn’t too terribly far behind, saying, “I certainly hope that the secretary of the Army is being nominated because the President wants the right person to defend our nation and not because he is looking to make a political statement on issues of sexual orientation unrelated to defending this nation and keeping us safe.” Having spoke his mind (such as it is), Cruz then claimed that he will “wait until his confirmation hearing to assess his record on the merits.”

Ted Cruz claims he was a Rehnquist pallbearer

Last week NPR Morning Edition host Steve Inskeep interviewed the one-term Junior Senator from Texas, Ted Cruz, about his book, his opinions, his book, his run for President, his book, gay marriage, and his book. During the interview, Cruz said something interesting:

Now, when Chief Justice Rehnquist passed away, I was a pallbearer at his funeral. Chief Justice Roberts was also a pallbearer at his funeral.

He repeated this story again in an interview with Katie Couric. (around the 5:00 mark)

I’ve known John Roberts for two decades. He’s a friend of mine. We were both clerks for Chief Justice William Rehnquist. Indeed with Chief Justice Rehnquist passed away, both John Roberts and I were pallbearers at Chief Justice Rehnquist’s funeral.

But there’s a problem with that claim. Contemporary accounts don’t seem to make mention of Cruz being a pallbearer. The September 7, 2005 edition of the Los Angeles Times paints a different account of the event.

The pallbearers — David G. Leitch, Frederick W. Lambert, Ronald J. Tenpas, James Duff, Kerri Martin Bartlett, Gregory G. Garre, John C. Englander and [John] Roberts — and Rehnquist’s other former clerks and staff members lining the Great Hall looked ashen.

And I don’t think I recognize him from the photograph.

Ted Cruz on the marriage ruling

It seems a consensus that junior Texas Senator Ted Cruz is seeking to be our nation’s next President. I disagree.

National Public Radio (NPR) interviewed Cruz about the Supreme Court rulings on Obamacare and gay marriage. In addressing the subject of the interview, Cruz has some interesting opinions about the court ruling on marriage equality that guarantees he will get attention.

He says states can just ignore it.

INSKEEP: Justice Scalia, who, as you, right — you worked with when you were a Supreme Court clerk and who you clearly greatly respect, ended his dissent on same-sex marriage with a warning that the court depends on states and the executive branch, the president, to follow its rulings, to respect them, and he warned that the court was moving closer to proving its impotence.

As you know, there are some Republicans who have been talking in general terms of somehow defying the court’s ruling.

Would you encourage state or federal officials who disagree with that ruling to ignore it or defy it in any way?

CRUZ: You know, you’re right, that the final paragraph of Justice Scalia’s dissent was an ominous paragraph. What Justice Scalia was saying was that these decisions are fundamentally illegitimate, that his colleagues on the court are not following their oaths.

Now, the way our constitutional system works, the courts that have the authority to decide cases and controversies between particular individuals. But there is no obligation on others in government to accept the court as the final arbiter of every constitutional question. Indeed, every officer takes an oath to uphold the Constitution.

INSKEEP: Which is a great story. But did I just understand you to suggest that state officials should feel no particular obligation to follow the court ruling if they feel it’s illegitimate?

CRUZ: They should feel no obligation to agree that the court ruling is right or is consistent with the Constitution.

This ruling…

INSKEEP: But does that mean they can ignore?

CRUZ: They cannot ignore a direct judicial order. The parties to a case cannot ignore a direct judicial order. But it does not mean that those who are not parties to case are bound by a judicial order.

And that’s what Justice Scalia was saying in his dissent, which is that the court depends upon the remainder of government trusting that it is faithfully applying the law and — and these judges and justices are disregarding their oaths.

…

INSKEEP: Did I understand you to say just now that as you read the law, as you read our system, this decision is not binding on the entire country, only to the specific states that were named in the — in the suit.

CRUZ: Article III of the Constitution gives the court the authority to resolve cases and controversies. Those cases and controversies, when they’re resolved, when you’re facing a judicial order, the parties to that suit are bound it. Those who are not parties to the suit are not bound by it.

Now, in subsequent litigation, other courts will follow the precedence of the court, but a judicial order only binds those to whom it is directed, those who are parties to the suit. That’s the way our litigation system works.

Now, this is what Justice Scalia was talking about in his dissent, which is that it has been the case that on a great many issues, others have largely acquiesced, even if they were not parties to the case.

But there’s no legal obligation to acquiesce to anything other than a court judgment.

Which is, of course, a distinction without a difference. SCOTUS has spoken on the matter and no federal court will rule contrary to the determination of the Supreme Court. Cruz is merely advocating avoidance, delay, chaos, and anarchy.

But fear not oh anti-gays, Cruz has found a solution to the horrible horrible badness of equality under the law. It comes in three parts.

[N]umber one, I’ve introduced a constitutional amendment to restore the authority of the states to define marriage as the union of one man and one woman. Number two, I’ve introduced legislation in the United States Congress to strip the federal courts of jurisdiction for attacks on marriage. The Constitution explicitly gives Congress the authority to strip jurisdiction as a check and balance against judicial overreach.

But number three, this week in response to both of these decisions, I have called for another constitutional amendment, this one that would make members of the Supreme Court subject to periodic judicial retention elections as a very real check.

Cruz’ number one option has exactly zero traction. This is a loser of an idea, as has been demonstrated in the US Senate. Never has an anti-gay marriage amendment garnered more than 48 votes, nowhere near the supermajority of 67 needed to pass. And that was before a number of Republican Senators began endorsing marriage equality.

Cruz’ second step similarly has zero chance of passage. Congress is not going to pull determination about the constitutionality of marriage bans from the federal court system. Such a step, supposing it had any support, would weaken the nation’s trust in our political system and leave the country uncertain as to whether there was any governmental branch to which they could turn to resolve grievances.

Even if by some bizarre chance it were to pass, no President of any party would sign such a bill. No one wants their legacy to be the dismantling of the system of checks and balances.

Finally, Cruz’ third solution is a frightening one. Most reasonable people – even non-political people – recognize that having the judicial review of a law’s constitutionality tied to political whim is a horrible idea. It is the longevity of judicial thought that overlaps administrations and shifts in ideology that protects the nation from despotism.

And further, his idea is founded in delusion. Coming from Texas, Cruz imagines that the views of his bubba buddies reflects the national opinion. He dreams that if only the Justices were subjected to a national plebiscite, then the people would throw out the Supremes who found that the Constitution requires equal treatment under the law and replace them with justices who would reinstate anti-gay marriage law.

He presents this example to support that pipe dream.

CRUZ: It’s worth remembering just a few years ago, the Windsor decision from the Supreme Court. It struck down a referendum that the people of California — now, California is not a conservative state. It is not a red state. California’s a bright, bright blue state. And yet when California put a referendum, just a few years ago, on about the ballot about whether marriage should remain the union of one man and one woman, a majority of Californians voted to preserve traditional marriage.

And then…

INSKEEP: But you don’t think that that vote would — would be different today, given the change in polls in the last several years?

CRUZ: It may well, or it may not. That was just a few years ago.

Ummm… that’s insane.

First off, Windsor did not strike down a referendum of the people of California. That was Hollingsworth v Perry, in which the Ninth Circuit struck down Proposition 8, and the Supreme Court found that the case was moot because after the state pulled its defense of the law, no one had standing to defend it. Windsor found that the federal government had to recognize the marriage of Edie Windsor and Thea Spyer, which had been legally conducted in Canada and was recognized under the laws of New York State as passed by the legislature.

But irrespective of Cruz’ lack of basic facts, he’s also completely wrong about public opinion. Polling on marriage equality in California shows that marriage equality has two-thirds favor. There’s no “it may not” possibility.

Similarly national polling has marriage leading holding support somewhere in the mid 50’s to opposition in the high 30’s. Even were the nation to toss out our long judicial history for Ted Cruz’ craziness, voters almost without exception vote for retention of judges. Even controversial judges. There is no way that the nation would vote out judges because they supported equality.

Which leads me to believe that Ted Cruz is not serious about Presidential aspirations. He’s not saying things that push one down the path to Presidency. Wacko statements like these do not cause donors to support you, papers to endorse you, or fellow politicians to bring their political machine to your service.

They do, however, get media attention and raise your profile in right-wing media. They do fire up the uninformed and earn the adoration of the single minded. As does a “campaign” designed not to win votes but to showcase image.

And, as it turns out, Ted Cruz has a book to sell, A Time For Truth. In the short NPR interview, he manages to mention or reference his book 22 times.

Ted Cruz is not running for President. Ted Cruz is selling a book.

[Updated to correct Cruz’ inaccuracies about Windsor]

Gov. Pence Calls For Changes In Indiana’s Right-To-Discriminate Law

This is what Indiana Gov. Mike Spence woke up to this morning: A a rare front-page editorial in the Indianapolis Star demanding that Pence and the state legislature “stop clinging to arguments about whether RFRA really does what critics fear; to stop clinging to ideology or personal preferences; to focus instead on fixing this.” Pence responded to that and other criticisms from business leaders around the country with a news conference today in which he 1) blamed his critics for spreading ” misunderstanding and confusion and mischaracterization” (while spreading a different kind of misunderstanding and mischaracterization himself; more on that in a moment), and 2) called for the legislature to implement unspecified “clarifications” to the law.

What those clarifications might be is anyone’s guess, and caution is in order. After all, the devil is always in the details, as Pence well knows as he mischaracterizes the very law he signed last Thursday. In this morning’s news conference, Pence doubled down on the claim that the law was nothing more than a state law mirroring the federal RFRA signed by President Clinton in 1993. Of course, the law’s supporters have already revealed the differences, as Rob Tisinai pointed out yesterday. Today, Sen. Chuck Schumer (D-NY), who is likely to become the next Senate Minority Leader, and who co-wrote the federal RFRA with Sen. Ted Kennedy (D-MA), blasted Pence’s mischaracterization on Facebook:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

Garrett Epps at the Atlantic describes a key event which led Indiana to add private companies and corporations in its law:

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

Pence nevertheless held firm in this morning’s news conference that the problem wasn’t with the law itself, but with “perception”:

But the governor, clearly exasperated and sighing audibly in response to questions, seemed concerned mostly with defending the law and the intent behind it, saying, “We’ve got a perception problem,” not one of substance. He referred to “gross mischaracterizations,” “reckless reporting by some in the media,” “completely false and baseless” accounts of the law, and “the smear that’s been leveled against this law and against the people of Indiana.”

“If this law had been about discrimination, I would have vetoed it,” he said. “I don’t believe for a minute that it was the intention of the General Assembly to create a license to discriminate, or a right to deny services to gays, lesbians or anyone else in this state, and that was not my intent, but I appreciate that that’s become the perception.”

Pence blames “reckless reporting,” but that “perception,” as he puts it, is largely attributable to two things: the text of the law itself, and Pence’s refusal four times to answer a straight up yes/no question on Sunday about whether an Indiana business can safely discriminate against a gay customer under the new law. And if he didn’t think it was about discrimination, then he didn’t pay much attention to the debate in the state legislature leading up to the votes, nor did he happen to notice those who stood behind him as his signed the bill into law. The Governor’s office refused to identify the people attending the private signing ceremony, but GLAAD did some of that work for them.

Click to enlarge.

But when you get past his self-serving complaints today, Pence has appeared to have backed down. The Washington Post’s Paul Waldman calls that a “significant victory” for gay Hoosiers:

But the pressure Pence got from people both within Indiana and around the country has essentially forced him to be true to his word. Up until now, Pence has been saying that the law was not intended to give businesses in Indiana the right to discriminate against gay people. Now he’s saying that he wants to put that explicitly within the law itself. That’s a huge win for gay people who don’t want to be discriminated against, and makes it more likely that the next state that passes a law like this one — and there are similar bills pending in multiple states — will include a similar clarification.

Not only that, Pence went so far as to say, “No one should be harassed or mistreated because of who they are, who they love or what they believe. I believe it with all my heart.” The “who they love” part is not the kind of language one usually hears about LGBT people from Republicans, particularly those as conservative as Pence.

For me though, the devil will still be in the details. It’s unclear how Pence and the GOP-controlled legislature will “fix this thing” while holding to their vow not to add sexual orientation and gender identity to the state’s anti-discrimination laws. When asked about that this morning, Pence replied, “I’ve never supported that, and I want to be clear, it’s not on my agenda. I think it’s a completely separate question.”

Despite (or perhaps, because of) the controversy, Pence enjoys powerful support within the Republican party. A rash of potential (and one declared) presidential candidates have already strongly defended Indiana’s RFRA in its current form, including former Florida Gov. Jeb Bush, Florida Sen. Marco Rubio, Louisiana Gov. Bobby Jindal and Texas Sen. Ted Cruz.

Ted Cruz Is On It

As Timothy noted, reactions from leading Republicans to today’s Supreme Court non-decision have been noticeably muted so far. Sen. Ted Cruz (R-TX) however abhors a vacuum:

“The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” said Sen. Cruz. “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.

“This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.”

And by gum, he’s gonna do something about it.

“Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.