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A Project of The Annenberg Public Policy Center

Cruz’s SCOTUS Stretch

Sen. Ted Cruz overreaches when he claims that President Obama’s Supreme Court nominee, Merrick Garland, is “precisely” the kind of nominee “that a dealmaker like Donald Trump would support.” In fact, Trump has named two possible Supreme Court nominees, and both were Republican appointees with conservative credentials.

Cruz made his remarks in a statement that he issued immediately after Obama announced his intention to nominate Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace the late Justice Antonin Scalia. At that point, Trump had not issued a specific statement on Garland, but earlier that day Trump said on “Good Morning America” that the Senate should block Obama’s appointment — regardless of whom it would be.

The nominee turned out to be Garland, who was appointed to the D.C. Circuit Court by Democratic President Bill Clinton in 1995 and approved by the Senate in 1997. In his statement, Cruz describes Garland as “a so-called ‘moderate’ Democrat” who is “precisely” the kind of nominee “that a dealmaker like Donald Trump would support.”

Cruz, March 16: Merrick Garland is exactly the type of Supreme Court nominee you get when you make deals in Washington D.C. A so-called “moderate” Democrat nominee is precisely the kind of deal that Donald Trump has told us he would make – someone who would rule along with other liberals on the bench like Justices Ginsburg and Sotomayor. Make no mistake, if Garland were confirmed, he would side predictably with President Obama on critical issues such as undermining the Second Amendment, legalizing partial-birth abortion, and propping up overreaching bureaucratic agencies like the EPA and the IRS. We cannot afford to lose the Supreme Court for generations to come by nominating or confirming someone that a dealmaker like Donald Trump would support. Washington dealmakers cannot be trusted with such crucial lifetime appointments.

Cruz, who is trailing Trump in the Republican presidential race, made his claim about Trump without any evidence, and his campaign didn’t provide any response to our request for evidence. It’s possible Cruz is referring to Trump’s comment that “everything is negotiable” — a statement he made when asked about reports that he would be flexible on illegal immigration if elected president. But, on the issue of Supreme Court justices, Trump has been specific on the types of judges he would support.

During the Feb. 13 debate, Trump was asked whether Obama should try to make an appointment to replace Scalia. Trump said he assumes that Obama will try, but the Senate should “delay, delay, delay” until a new president takes office. Trump also offered two names of circuit court judges who could be elevated to the high court, if the Senate delays long enough to give a Republican president a chance to make an appointment.

“In times of delay, we could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people,” Trump said at the debate.

Unlike Garland, Sykes and Pryor are Republican appointees. Both were nominated by President George W. Bush.

Bush battled with the Democrats over his nomination of William H. Pryor Jr., a former Alabama attorney general. Bush nominated Pryor in April 2003 to the 11th U.S. Circuit Court of Appeals. But Democrats tried to block Pryor, because of his conservative views. For example, at a June 11, 2003, hearing, Democratic Sen. Chuck Schumer expressed concerns that Pryor would be unable to follow past court precedent on the issue of abortion.

Quoting Pryor, Schumer said at the hearing: “Quote: ‘Roe v. Wade is a creation,’ quote, ‘out of thin air of a constitutional right to murder an unborn child.’ He has said that he, quote, ‘will never forget January 22nd, 1973, the day seven members of our highest court ripped up the Constitution.’ ”

Pryor’s nomination languished in the Senate, and Bush used a recess appointment in February 2004 to place him on the bench. In February 2005, Bush resubmitted Pryor’s nomination, and after another extended battle, the Senate approved Pryor in June 2005. The 53-45 vote was largely along party lines with only two Democrats supporting Pryor.

As for Sykes, Bush nominated her to the 7th U.S. Circuit Court of Appeals in November 2003, and she was approved by the Senate by a more comfortable 70-27 margin in June 2004.

Fox News last month listed her among possible Supreme Court nominees if the Republicans win the White House in November. The news outlet wrote that Sykes’ “profile has been increasing among many conservatives.” Among her court rulings, Sykes wrote the opinion in Ezell v. City of Chicago, in which the 7th Circuit struck down a Chicago ban on firing ranges as unconstitutional.

“The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective,” Sykes wrote.

We have no idea whom Trump would nominate, if given the chance. But Cruz doesn’t either. Instead, Cruz sets up a straw man argument — claiming Trump would nominate someone like Garland and then attacking Trump for siding with a “moderate Democrat” who would undermine conservative causes on gun control and abortion. Actually, Trump has cited judges who have a record of siding with conservatives on those very issues.