by Ted Cruz
I still don’t understand why the justices tolerate this gamesmanship, which diminishes respect for the rule of law. It would be a simple matter for the Court to issue rules saying that all applications for stays must be filed at least one week before the execution date. Or, even a single justice could simply announce publicly that he or she would not vote to stay any execution if the stay application were filed less than a week earlier. That would allow, fair, careful, reasoned consideration of the legal claims, not haphazard skimming at midnight. The rule could exclude claims of actual innocence—which could be filed at any time whatsoever—but the vast majority of capital defendants make no claims of innocence.
But that’s not how it works. So, late at night, after the Court had voted to deny a stay of execution, it would fall to us clerks to draft the order of the Court.
The lead clerk that night would sign it, with your justice’s initials and your own—in my case “WHR/tc”—and then you’d place it on the fax machine and send it to the prison that was about to carry out the execution. Every time, it was a sober responsibility to sign those documents and fax them off.
I believe in the death penalty. It’s a matter of justice. Life is precious, a gift from God, and when a person willfully and deliberately murders another, then the ultimate penalty is justified. Working on capital cases, as I have over the years, you see the face of evil—people who have abused, tortured, and murdered the innocent without a hint of remorse. (That’s why the liberal clerks would typically omit the facts; it was harder to jump on the moral high horse in defense of a depraved killer.)
On the death penalty or any other major issue before the Court, Rehnquist hardly ever lobbied other justices, though sometimes we would beg him to. It would have been particularly helpful if he had tried to persuade his old friend and law school classmate, Sandra Day O’Connor, to vote his way. Rehnquist and O’Connor had briefly dated, in law school, and they had been friends for more than five decades. She also tended to be the pivotal swing vote on any number of decisions.
But Rehnquist usually refused such entreaties. He was very respectful of the other justices’ points of view. “No, no,” he’d say. “She can decide this for herself.”
This brings me back, finally, to the pornography story. The year I was a clerk on the Court, the Internet was nascent technology. The Court was considering one of the first cases challenging the constitutionality of a law passed by Congress to regulate Internet pornography.
Most of the justices were in their sixties or older. Few knew much of anything about the Internet. So the librarians of the Court designed a tutorial for them. They set up sessions for two justices at a time and their clerks. As it happened, our Rehnquist group was paired with Justice O’Connor.
In a small room gathered the Chief, Justice O’Connor, and their respective law clerks. The librarians’ purpose was to demonstrate to the justices how easy it was to find porn on the Internet.
I remember standing behind the computer, watching the librarian go to a search engine, turn off the filters, and type in the word cantaloupe, though misspelling it slightly. After she pressed “return,” a slew of hard-core, explicit images showed up on screen.
Here I was as a twenty-six-year-old man looking at explicit porn with Justice Sandra Day O’Connor who was standing alongside the colleague she had once dated in law school. As we watched these graphic pictures fill our screens, wide-eyed, no one said a word. Except for Justice O’Connor, who lowered her head, squinted slightly, and muttered, “Oh, my.”
* According to Woodward, one of the sitting justices, Potter Stewart, had been a key source for the book as well.
* Several times previously, the law review had voted on whether to extend affirmative action to women. Each time it was voted down, with many of the liberal women opposing any expansion; they knew full well that doing so would devalue the credential they had worked so hard to earn.
CHAPTER 5
The Bush Administration
As the Holocaust survivor entered the White House that morning, to receive a medal from the president of the United States, Elie Wiesel’s thoughts were troubled. He had considered boycotting the event altogether. And he was in no mood to accept gratitude or congratulations.
Instead, he was on a mission. A daunting one. To confront directly the most powerful man in America and, indeed, the most powerful and respected leader in the world. As he prepared to do so, it likely was not lost on him that there was no other nation in the world that would allow him such an opportunity. For that fact, he was grateful, despite the anger and sadness that filled his heart.
For nearly half an hour, Elie Wiesel and Ronald Reagan met privately. It was by all accounts an emotional meeting in which the acclaimed writer implored the president he admired to reverse his decision to visit a German cemetery, Bitburg, which included the remains of former officers in the SS.
Reagan had not known the cemetery contained Nazi soldiers when he accepted the invitation to visit, but he held firm on his decision to go. He had made a promise to his friend and close ally, West German chancellor Helmut Kohl, who was battling to hold together his majority coalition and all but begged Reagan to hold his ground on the visit in the spirit of “reconciliation” between the German and Jewish people. (Polls showed 72 percent of West Germans wanted Reagan to visit the cemetery.) In their meeting, the president assured Wiesel that he intended to honor the memory of the Holocaust and would make a visit to the Bergen-Belsen concentration camp, where Anne Frank had died.
That was not enough for Wiesel. He could not abide the thought of an American president laying a wreath at a cemetery that included those who had sought the extermination of the Jewish race. Wiesel and his father had been interned at Auschwitz (his father would later die at Buchenwald). The Germans also had rounded up his mother and sisters, one of whom, Sarah, did not survive. Wiesel himself was scheduled for the crematorium at Buchenwald, and would likely have perished as well had the camp not been liberated by American soldiers only weeks later. Privately, Wiesel believed Reagan had been poorly served by his staff, who had put him into a “no-win” situation by allowing Kohl to make the request of Reagan in the first place.
After their meeting, Reagan welcomed Wiesel to the Roosevelt Room and a crowd of reporters and television cameras.
Characteristically eloquent and gracious, Reagan lauded Wiesel as a teacher about the horrors of the Holocaust. The president presented the medal to Wiesel, who handed it to his son.
As the dark-haired Holocaust survivor took to the podium, the room was unusually silent. Reporters and cameraman stared. The president was attentive and quiet. In the background, White House officials lurked nervously.
“You spoke of Jewish children, Mr. President; one million Jewish children perished. If I spent my entire life reciting their names, I would die before finishing the task. Mr. President, I have seen children—I have seen them being thrown in the flames alive. Words—they die on my lips.”
Some reporters’ eyes were wet with tears. The president sat grimly, his face silent and sad.
Wiesel saluted Reagan for “being a friend of the Jewish people, for trying to help the oppressed Jews in the Soviet Union.” Then, his body turned in Reagan’s direction, he added, “But, Mr. President, I wouldn’t be the person I am, and you wouldn’t respect me for what I am, if I were not to tell you also of the sadness that is in my heart for what happened during the last week. And I am sure that you, too, are sad for the same reasons. What can I do? I belong to a traumatized generation. And to us, as to you, symbols are important. And furthermore, following our ancient tradition—and we are speaking about Jewish heritage—our tradition commands us, quote: ‘to speak truth to power.’ ”
When Wiesel had finished, Reagan stood and shook his hand. The controversy did not die that day. Reagan did not relent. But a great moment in democracy had taken place. An American citizen had told the truth to an American president, who had given him every opportunity to do it
. The story for me is a reminder of many things—first, that America is a nation that believes so much in freedom it would even allow such a debate. Second, that even the best leaders sometimes make bad calls.
It was almost impossible to believe. After the many sleep-deprived nights on the campaign, after the hours upon hours of strategy sessions, memos, policy briefings, and meetings, it was all a waste. The Clinton era would continue. Albert Gore Jr. was about to become the next president of the United States.
The election results in Florida on November 7, 2000, had proven both the biggest disappointment and turning point. Veteran CBS broadcaster Dan Rather, a dogged foe of the Bush family, warned his viewers that Texas governor George W. Bush “is by no means out of the race.” But it was starting to feel that way. You could see it in the way the pundits were talking on CNN and Fox and the major networks. You could see it in the slightly satisfied gleam in Rather’s eyes. In the middle of the evening—while the polls in Florida were still open—CBS called the state for Gore, and the other networks followed suit.
And then something unusual happened. No, not unusual. Extraordinary. Unprecedented, even. On another channel, CNN, the veteran anchor Bernard Shaw appeared on-screen to declare that “CNN is moving our earlier declaration of Florida back to the too-close-to-call column. Twenty-five very big electoral votes.” Other networks too were suddenly saying, to obvious embarrassment, that calling Florida for Gore had been oddly premature.
Then Florida swung even further away from the Democrats—and into the Bush column. Just like that, the night—now early Wednesday morning—had taken a breathtaking 180. There was hope again in Austin. No one could sleep. No one wanted to sleep. Then, at 1:18 in the morning Texas time, NBC’s Tom Brokaw abruptly cut into a conversation with Katie Couric and presidential historian Doris Kearns Goodwin to declare, “George Bush is the president-elect of the United States. He’s won the state of Florida, according to our projections. . . . It’s been a night of first giving it to Al Gore, and then taking it away.” It made me feel sorry for Gore. Almost.
Even Dan Rather finally admitted Bush had won. With his usual folksy antics, and apologies to Hemingway, Rather called the election for Bush thusly: “The son also rises.”
“It’s been a long and suspenseful evening,” Brokaw said on NBC, as if in summary. Of course, as we all know now, it was just the beginning. A long, ugly mess was unfolding—and at the age of twenty-nine, I was right in the middle of it.
When I was hired on the Bush campaign in June 1999, I did not know the governor at all, though of course I knew of him and his famous parents.
Bush first ran for governor in 1994 in what seemed a long-shot bid against the popular Democrat Ann Richards, but he had demonstrated remarkable, almost inhuman, message discipline. He had four priorities, he told people: tort reform, juvenile justice reform, welfare reform, and education reform. He repeated those four over and over again. At one point midway through the 1994 campaign he called some reporters together, “Hey, I have a fifth priority.” The reporters grabbed their pads, excited. He said, “My fifth priority . . . is to pass the first four.” That was typical Bush humor.
When Bush announced he was running for president, I knew he was the candidate I would support. I believed he had strong conservative instincts. He had been raised in Midland, Texas, which gave him many of his values—a belief in entrepreneurship, free enterprise, and hard work. He had served as governor of Texas for five years, and I admired his record. I thought I might want to help his campaign in some way, but I wasn’t really sure how to go about it. At that point I had a great job in private practice in Washington.
Coming out of my clerkship, I had gone to work at Cooper & Carvin, a tiny law firm founded by Chuck Cooper and Mike Carvin, both protégés of Ed Meese in the Reagan Justice Department. Chuck was also a former Rehnquist clerk, a graceful and elegant writer, and one of the top Supreme Court litigators in the country. Mike is simply brilliant, blessed with Scalia-esque intellect and a wicked wit. Theirs was a brand-new firm—just nine months old, and I was just the seventh lawyer to join them. The firm’s practice was unique, specializing in cutting-edge constitutional litigation and commercial litigation.
Most clerks go to work for big, established firms, but some of the best advice I had gotten was to work for people that can best teach you how to practice law. I respected Chuck and Mike and wanted to learn lawyering from them. They’re principled conservatives, and phenomenal litigators, and both became great friends and mentors to me.
As a baby lawyer, I had just argued my first appeal, a $10 million case representing Ford Motor Company. We won unanimously. I was also helping Chuck represent the National Rifle Association in multiple cases, and assisted in preparing his testimony before the House of Representatives in the impeachment of Bill Clinton. (Chuck testified as a constitutional expert on what constitutes “high crimes and misdemeanors” under the impeachment provisions of the Constitution.)
I also was helping Mike represent a congressman named John Boehner. In 1995, two Democratic activists illegally intercepted a call on Boehner’s cell phone and gave the tape to Democratic congressman Jim McDermott, who promptly handed it over to news reporters. Boehner sued McDermott—in what was billed as the first civil suit between sitting congressmen in history—and hired Mike to represent him. Ultimately, the case became a major First Amendment suit, and after many years of litigation, Boehner prevailed.*
In the midst of learning to practice law, I was also dealing with a personal crisis. My older sister Miriam was in real trouble. She and Roxana were my half sisters from my dad’s first marriage. Miriam in particular had a very difficult time with her parents’ divorce. She was beautiful and quite intelligent, and incredibly loving. When I was a toddler, she would play with me for hours on end, even letting me pull her hair, without complaint. But she was perpetually angry—emotionally trapped as a rebellious teenager. Though she was a sweet person with a good heart, she slowly surrendered to her wild side. She would go dancing at what my father derisively referred to as “honky-tonks” and consistently sought out bad characters. She was married to a man who was in and out of prison, and who was physically abusive. Eventually she developed a serious drug and alcohol addiction. I loved Miriam, who was nine years older than I. But I sometimes found it hard to reconcile the bright, fun, charismatic sister I adored with the person who would lie to me without hesitation and who stole money from her teenage brother to feed her various addictions.
As she grew older, her descent continued. Several times, she went to prison for petty offenses, like shoplifting. Yet she never seemed to learn any lessons. Her sickness took a firm hold of her. She would continue to lie, to steal, to commit crimes over and over again.
Coming out of prison, she had hooked up with a man with a serious drug problem, and they moved into a crack house. At that time Miriam had a young son, my nephew Joey, who was in sixth grade. She had been raising him as a single mom, but she was no longer able to do so. My dad flew from Texas to D.C., and he and I together drove to Philadelphia, where they were living. I remember my dad and me leaving our watches, rings, money, and wallets in D.C., because we didn’t know if we’d be robbed or shot at the crack house where Miriam was living.
We picked up Miriam and took her to a Denny’s to try to talk some sense into her. It was a fruitless effort. She was angry. Angry that her parents divorced when she was a little girl, angry that her father had missed a high school swim meet of hers. I wasn’t terribly understanding. I pointed out to her that our aunt, Tía Sonia, had experienced far worse—horrific things in a Cuban jail—and yet she raised our cousin Bibi as a single mom. I told Miriam she needed to stop wallowing in self-pity and do what was needed for her son.
Miriam refused to change her path. And so we had a real challenge in what to do with Joey. My parents were still broke, and I was just starting to work, with substantial student loans. So I took a twenty-thousand-dollar cash advance on my credit card to p
ay for Joey to go to a military school, Valley Forge Military Academy. It took me several years to pay off the bill, but I think and hope that putting Joey in that school made a real difference in helping instill discipline and order in his life.
A year later, Miriam had improved somewhat and was able to care for Joey again. In 2011, my sister died of a drug overdose, which the medical examiner determined was accidental. It was heartbreaking. I loved my sister, and she spent much of her life trapped by the demons of addiction and anger. During her struggles, my other sister Roxana really stepped up as well, becoming a tremendous source of love and support for Joey. Today, Roxana is a successful doctor in Texas, and she has a real heart for helping and caring for those in need. But I take great solace in the fact that Joey has grown into a strong and responsible young man, working a good job in a Pennsylvania chocolate factory.
Back to 1999. My law practice was thriving, and I was putting down roots, even getting ready to close on my first townhouse. But then, at a fund-raiser for Governor Bush in Washington, I got an unexpected opportunity. A law school classmate introduced me to Bush’s policy director (and future White House chief of staff) Josh Bolten. A forty-four-year-old workaholic bachelor whose stubbornly temperate manner masked a razor-sharp intellect, Josh was assembling a team of about a dozen policy advisors for the Bush 2000 campaign.
I had no idea who Josh was, but my law-school buddy whispered, “Ted, talk to this guy. Trust me, you want to talk to this guy.”
After a brief conversation, Bolten asked, “Can you come interview with me tomorrow?”
“Sure.” I had no idea what I was interviewing for.
