Texas Senator Ted Cruz joined me this morning to talk defunding the U.N., repealing Obamacare, the Russians and Assange:
HH: Joined now by United States Senator Ted Cruz of the great state of Texas. Happy New Year, Senator, great to have you back in 2017 on the Hugh Hewitt Show.
TC: Happy New Year, Hugh, and Merry Christmas, and it’s great to be with you.
HH: It is great to talk with you. I’ve got a lot of ground to cover with you, including UN defunding, Israel, many things. I also have to get your address off air so I can send you the new book, The Fourth Way.
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.
HH: Because the Reid Rule is actually it takes 51 votes to change the rules of the Senate, not that all judicial nominees except the Supreme Court are confirmed by 51. I want to be clear about this, because the Reid Rule is actually about how you change the rules of the Senate.
TC: Well, what happened, I mean, the rules of the Senate that are written down on paper still say it takes 60 for everything. 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. And you know, I’ll tell you, it was interesting, Hugh, when that happened, 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, and the reason is simple. Look, on the last, the Democrats really don’t self-censor. I mean, they will nominate the most whacked out, left wing nominees they can find. I mean, they’re already putting up, you know, in some cases, you know, darn near Bolsheviks and Mensheviks. So they don’t constrain, and Republicans like the dutiful, sometimes gullible opposition, typically will confirm, no matter what lunatic they nominate. On the right, Republicans historically have self-censored, have moderated, have looked for, okay, who can get 60 votes, who can we get Democrats to? By Reid blowing up the rule and lowing it to 51, one of the reasons, I believe, President-Elect Trump’s cabinet is as conservative as it is, and it really, I’m very, very encouraged by the number of strong conservatives in this cabinet, is precisely because Reid blew up the rule and lowered the threshold to 51, which means the Trump transition team isn’t sitting there on every nominee saying how do we get to 60? I think it would have likely changed the contours of the cabinet considerably, and we have Harry Reid to thank for that.
HH: So I want to press you, Senator Cruz.
HH: If, in fact, Democrats obstruct, will the Republicans invoke the Reid Rule and appeal the ruling of the chair and confirm a Supreme Court nominee with 51 votes?
TC: I think that question has yet to be answered. What I can tell you is a couple of things. Number one, the majority leader is telling the conference, and this is being echoed by the conference in considerable respect, that we will not allow the Democrats to filibuster and stop the next president’s Supreme Court nominee. We will confirm that nominee. And the exact procedural method is, has not been specified right now, although look, I can tell you very simply, Chuck Schumer and Tim Kaine were both saying that if Hillary had been elected, and if they had a majority, that they intended to use the nuclear option and lower the threshold to 51 for Supreme Court nominees. And you know, it’s not rocket science that the rule should not apply to one party only, that what’s good for the goose is good for the gander.
HH: So help me educate the media. You only need 51 votes in the final analysis. You don’t need 60.
TC: If the nuclear option is used, as I said, what is likely as a first step on a Supreme Court nominee…
TC: …is to bring it up and see if we get 60. I’m skeptical that we do, but you know, the Democrats could surprise us and decide that they don’t want to provoke that fight. I think they’re so radicalized, that’s unlikely, but I think the majority leader wants to see if we’ll get 60 on the first step.
HH: And it will not be, in my view, and I put an entire chapter in The Fourth Way about this, it will not be radical, it will not be new, it will not be nuclear. It will be the second use of the option of the Reid Rule. That’s all I think it is, and I don’t like the narrative in the media that’s developing that the Republicans would be radical if they did this, because Harry Reid was the radical here.
TC: That is exactly right, and it is Harry Reid’s precedent. And I would note that just about every Republican told Harry Reid this is where this path ends, that in taking the step, it almost inevitably results in eliminating the filibuster for the Supreme Court, and indeed, it puts the Senate well down the road to potentially eliminating the filibuster for legislation as well, which would be a really meaningful change.
HH: Let me come back now, one more question on the Supreme Court, a couple on the judiciary, and then to the UN. My short list of the 21 put forward by President-Elect Trump is Justice Stras in Minnesota, Judge Ryan on the Court of Military Appeals, your friend, Justice Willett in Texas, and Judge Pryor. Do you have a favorite, Senator Cruz?
TC: Look, I think there are many strong people on that list, many of whom I know very, very well. You know, I have to say, I think on that list, my colleague, Mike Lee, would be truly extraordinary. I think Mike Lee on the Court would be a nominee very much in the mold of Antonin Scalia.
HH: I left him off, because he declined. He said earlier he’s not interested. But I agree with you. But I just…of the…
TC: Well, that actually was a case of the press misreporting it.
TC: What happened on that was a press aide when asked said Senator Lee is very happy with his job in the Senate, which as you and I know, is very different from saying he declined.
HH: Okay, then he’s on my short list, too.
TC: And the press immediately read a headline, Lee Declines, which was a little nuts, given that he was running for reelection in the Senate, and his press aide said yeah, he’s really happy in the Senate.
HH: Okay, then I have a list of five. I hope it’s one of those five. Let me ask you two more Court questions. Harry Reid also packed the DC Circuit by breaking this.
HH: Would you be open to expanding the DC Circuit in order to reverse that packing so that the regulatory state has to face a real court as opposed to a left wing, packed court?
TC: You know, Hugh, I think it’s a fair question, and it’s a question I would say that I would be willing to look at and discuss. I don’t want to, I haven’t analyzed it, so I don’t want to jump to conclusions without looking at the facts, looking at the caseload of the court, and assessing it more carefully.
HH: Yeah, I’m hoping you will take that up, because we’ve got to carve back the regulatory state, and that means…
HH: The 9th Circuit is an unwieldy beast that captures and holds hostage Western states like Arizona, which are conservative, under judicial decrees which are far left.
HH: How about breaking up the 9th Circuit?
TC: You know, I think there’s a lot to be said for breaking up the 9th Circuit. I had dinner last night with Senator Dan Sullivan, the Senator from Alaska, and he was bemoaning Alaska being captive in the 9th Circuit, and with a bunch of California liberal judges setting the law for Alaska. And I think a lot of the Western states would love to be free of some of the looniness that the 9th Circuit has long been known for. I suspect that’s an issue that the Judiciary Committee will look at and consider. To me, I think there’s strong arguments on the merits. For one thing, the circuit is just huge. I mean, it’s unwieldy, and I think there’s a good argument that it’s too large to function as a circuit. It’s much, much larger than the other circuits.
TC: And so I think we ought to discuss it on the merits.
HH: And the last question, the Chief Justice annually appeals, and the Congress annually refuses, to bring judicial pay to the level where originalists that we do put on can afford to stay there through their kids’ college. Would you lead the charge, Ted Cruz, to get judicial pay in line with reality so originalist judges don’t have to quit?
TC: Well, you’re right. The Chief Justice does that ever year, and his predecessor did that every year before that. And I do think you know, you need to look at considerations of what it takes for people to serve on the Court. You know, that being said, people on the court have not taken vows of poverty. They’re not starving. They’re you know, they, so I’m less than overwhelmed, although I will tell you an anecdote that you’ll appreciate, a funny exchange. So back in 1995, I was clerking on the Court of Appeals for the 4th Circuit, clerking for Mike Luttig, whom you know, who was at that time one of the top conservative appellate judges in the country. And at the same time, the Chief Justice whom you referenced, John Roberts, was at the time leading the Supreme Court practice at Hogan and Hartson Law Firm. And that was the year that the salary at law firms for first year associates, baby lawyers just out of law school, passed the salary for a federal appellate judge.
HH: It’s remarkable.
TC: And so Luttig, tongue in cheek, wrote a letter to John Roberts, who was a friend of his for many, many years, and the letter was an application for a job.
TC: And Luttig wrote, you know, Dear Mr. Roberts, I read recently that the salary for first year associate is X dollars. That exceeds the salary that I’m currently making as a federal appellate judge, so I’m writing to apply to work as a first year associate in your law firm. I believe I have the academic credentials and can do a competent job, and would be very interested in pursuing this career opportunity. And John Roberts writes Luttig back. Dear Judge Luttig, thank you for your expression of interest in employment in the firm. I’m sorry to say Hogan and Hartson must decline an offer of employment as a first year associate for a number of reasons.
TC: First of all, although we provide extensive support, it is not our practice to provide each of our first year associates with four full-time law clerks to assist in every aspect of their job.
TC: Secondly, although we do have casual Fridays, it is not acceptable attire at Hogan and Hartson to wear robes to work.
TC: And I’ll give you a final and not widely discussed component of that exchange, which is that Antonin Scalia, for whom Luttig clerked, was in on the joke. And so Scalia wrote a fake letter of recommendation for his former law clerk, Luttig.
TC: And Scalia wrote Roberts and said you know, Dear John, I understand my former law clerk has applied to work as a first year associate for you. You know, I have to say, he’s not terribly bright, and he doesn’t work very hard.
TC: So I think government service is probably the right place for him to be right now.
HH: (laughing) All right, now let me ask…
HH: Now I’m going to transition to the UN. I want to defund the UN and take all the money there to pay judges what we need to keep them there. Are we going to defund the United Nations, and I’m serious. After this Israel deal, I don’t want them to move out of New York. We’ve got to keep them close by. No, you know, China will build them right there, and we’ll never have a conversation that isn’t, you know, bugged. But I don’t want to fund them anymore.
TC: Well, what the United Nations did towards Israel the last several weeks was absolutely abominable. It was shameful. And the most shameful aspect of it was that it was orchestrated and actively acquiesced to by the Obama administration, by Barack Obama and by John Kerry. The UN passed a resolution with the Obama administration’s encouragement that is the most anti-Israel resolution we have seen from the UN in decades, that declares Israel as it exists today as fundamentally illegal, and that absurdly declares major portions of Israel to be illegitimate and illegal. The UN resolution declares the Jewish Quarter, the old city of Jerusalem, to be illegal and illegitimate. The UN resolution declares the Temple Mount, and astonishingly, the Western Wall, to be illegal and illegitimate. And this was Barack Obama and John Kerry, their final salvo. It’s when the masks are off, it’s when they’re not pretending anymore. And I think Obama intended this action to be a critical part of his legacy, and I think he succeeded. History will record Barack Obama and John Kerry as unrelenting enemies of Israel. Now what should we do about it? I think we should do quite a bit about it. I’ve introduced a whole series of legislation. Number one, I’ve introduced legislation to move the United States Embassy in Israel from Tel Aviv to Jerusalem. Israel’s the only country on Earth where we don’t have our embassy in its capital. The incoming administration, President-Elect Trump, has expressed support for doing so. I hope we do so very, very soon. Number two, I’ve introduced legislation to cut off funding for the Palestinian Authority. The PA is in a unity government with Hamas, declared avowed terrorists who murder innocent women and children, and we should not be funding terrorists. But number three, and this goes right to your question, Hugh, in response to this, I’m working with my colleague, Lindsey Graham, on introducing legislation that would cut off all US taxpayer funds to the United Nations unless and until this shameful anti-Israel resolution is repealed. And I think we’ve got a real prospect of this moving forward, because I think the UN and Obama have overstepped in their antipathy and hostility to Israel.
HH: Well, God speed on that, because I agree with you on that. Now let me turn to Russia and national security in our final five minutes here. Yesterday, the President-Elect quoted Julian Assange. Julian Assange is an enemy of the United States. He has leaked our national security secrets. He has got a warrant out for him in Sweden. He is hiding in the Ecuadorian embassy. Should the President-Elect be quoting Julian Assange?
TC: Well, look, I’m not going to come after everything the President-Elect does. He does some things I agree with. He does other things I don’t agree with. What I do think we need to be doing is protecting our national security. There’s no doubt that it is not a surprise that Russia engages in cyberattacks and tries to hack us. It is not a surprise that China engages in cyberattacks and tries to hack us. It is not a surprise that North Korea engages in cyberattacks and tries to hack us. That is part of having enemies who wish us ill. And one of the consequences is for eight years, we’ve had an administration, the Obama administration, that for every enemy of America has projected weakness and appeasement and coddling, so every act of cyberwarfare gets treated with effectively a yawn, and no meaningful reactions. I hope and believe that’s going to change in the new administration. I think the national security team that has come around the President-Elect is very strong.
HH: I think Mike Pompeo is great.
TC: General Mike Flynn, the national security advisor, I think is terrific.
HH: Pompeo is great. But let me then phrase is specifically to you. What is your opinion of Julian Assange?
TC: Oh, look, I think Assange has done enormous damage to our national security. I would not be praising him under any circumstances.
HH: All right, then let me close by asking you political question. You’re up for reelection in two years. I don’t think anyone should run against you. They’ll get slaughtered. What is the layout in Texas? Do you anticipate a Republican challenger?
TC: Well, thank you, Hugh. Listen, I think we’re in a strong position. I’m encouraged by where we stand. But you know, there’s an old adage. There are two ways to run – scared and unopposed. Unless and until I discover I’m unopposed, we’re going to run scared. And so we’re working hard, we’re raising money, and you know, I would encourage folks if you want to support the campaign, you can go to www.tedcruz.org, www.tedcruz.org, support the campaign. Having resources in the bank makes a big difference, and we’re also working continually to keep building our grassroots support in Texas. I’ve been very encouraged. The strength of our team politically has always been the grassroots, has been the men and women on the ground, has been Republican women and Tea Party leaders and young people and Hispanics and small business owners and the activists on the ground. And we’re going to continue working hard to earn their support. I’m going to continue every day working hard to earn the support of Texans. I’ve been crisscrossing the state.
HH: So I’ve got a minute left. Do you expect anyone will run against you, any serious opponent?
TC: You know, at this point, I don’t see anyone that is likely to run, but I am going to assume that the threat is serious, and prepare accordingly. And if someone does run, we’re going to do what it takes to beat them, and I hope beat them resoundingly.
HH: I think you will. I’m sure you will, and you can come and live in this studio if that’s the case. 30 seconds, Senator Cruz, Paul Ryan said to me yesterday the replacement will be in the 200 days, we will have a roadmap for getting rid of Obamacare. Is that, in your view, correct? We’re not going to delay the replacement?
TC: Well, I think there’s no doubt we should move and move quickly on a replacement. The procedural hurdle is likely to be the Senate, and the Senate filibuster. It is not clear just how much can be included in the budget reconciliation. And this gets into the weeds, but repeal will go through on budget reconciliation, which takes only 51 votes. But it’s going to be a question for the Senate parliamentarian how much of replacement can be included in that as well. If we can’t get in in reconciliation, it means any replacement is subject to 60 votes and a Democratic filibuster. That’s going to be a challenge. The House will be able to move, but we’re going to have a big fight on our hands, because I think the Democrats are bound and determined to be obstructionists. They don’t want any replacement, and so this is going to be, I think, a huge political battle in 2017.
HH: Good luck in that battle, Senator Cruz, come back early and often. The entire audio and transcript of this will be posted at Hughhewitt.com shortly.
End of interview.