by Ted Cruz
Through his thick black horn-rimmed glasses so familiar that they had become his trademark, Senator Goldwater slowly read the document. A sense of sadness tinged with rage overcame him when he reached its eighth paragraph, a confession of what the secret tape would soon show: The President of the United States had personally directed an effort to frustrate a federal investigation and obstruct justice, and he had begun doing so almost as soon as he first heard the word Watergate.4
On the tape, which the Supreme Court had recently required the president to release to the public, Nixon had ordered that the FBI be instructed to stop investigating the Watergate break-in.
“Don’t go further into this case,” Nixon had barked into a hidden microphone, “period!”5
Like his former aide, Barry Goldwater had believed the president’s assertions of innocence.6 And it was Goldwater’s opinion that mattered most. Indeed, in the decade since he’d lost the presidency in the Lyndon Johnson landslide, the conservative Republican had become an ornery, plainspoken, and grudging member of the GOP establishment that he had long railed against. Though he never liked Nixon that much, Goldwater had been among the president’s most prominent and determined defenders. Now the senator had to decide what to do.
That night, Goldwater could not sleep.7 His mind returned over and over again to the deception and dishonor of the president. His president. A president whom he had endorsed, campaigned for, and defended against a press corps that Goldwater would glare at and call a “rotten bunch” for their treatment of Richard Nixon.8
One of the options Goldwater considered on that long and sleepless summer night was to withdraw from his own reelection campaign, retire from politics, and make a televised plea for his party’s leader to resign the presidency. If this kind of self-sacrifice would persuade Nixon to spare the nation the nightmare of an impeachment trial and restore confidence in our system of government, he would do it. But his wife talked him out of it. Little would be achieved, Margaret said, by Goldwater running away from Washington.9
The next day, the Republican Senate caucus gathered at noon for lunch with an unusual guest: Vice President Gerald Ford.10 He had just come from a White House cabinet meeting, and he had more bad news. At the meeting, the president had vowed never to resign from office, even though the whole world now knew he was a crook after all. Nixon believed resignation would deliver a “hammer blow” to the office of the presidency.11 It would be a desertion of “the principles which give our government legitimacy.”12 He was certain his refusal to resign was in the “best interests of the nation.”13
When Ford finished speaking, a long, uncomfortable silence followed.14 Goldwater and the Republican senators around him were in shock. Obstruction of justice and abuse of power were impeachable offenses, and in light of the smoking-gun tape proving Nixon’s guilt, there was no doubt he would be impeached by the House of Representatives and convicted by the Senate. Was he really going to drag the country through the months it would take for the process to reach its inevitable conclusion?
“The best thing he can do for the country,” an outraged Goldwater finally said to his colleagues, “is to get the hell out of the White House, and get out this afternoon!”15
The next day, Goldwater walked into the Oval Office to deliver that same message to President Nixon. With him were two other Republicans: House Minority Leader John Rhodes and Senate Minority Leader Hugh Scott. Goldwater felt the weight of history on his shoulders when he considered that it was the first time—and he hoped the last time—that the leadership of a president’s political party called on the commander in chief to persuade him to resign from office.16
The president appeared surprisingly serene.17 In the two decades since they had first served in Washington together, Goldwater had never seen the tightly wound Nixon so relaxed.18 He was an enigma indeed.
Nixon leaned back with his feet on his desk, reminiscing about campaigns past, and treating his guests to a few monologues about Presidents Johnson and Eisenhower—history was on Nixon’s mind. Then he casually said, “Well, we are all aware of why you are here. We might as well get down to it.”19
Goldwater’s two colleagues had asked him to be their spokesman, and although he had too much respect for the office of the presidency to tell Nixon to “get the hell out,” he was determined to deliver the same message, with only slightly kinder words.
“Mr. President, this isn’t pleasant,” said Goldwater, “but you want to know the situation and it isn’t good.20
“We’ve discussed the thing a lot and just about all of the guys have spoken up, and there aren’t many who would support you if it comes to that,” he said.21 In other words, Nixon had little to no support—not even from his own party. They were unwilling to defend the indefensible.
“I kind of took a nose count today,” continued Goldwater, referring to a future impeachment trial, “and I couldn’t find more than four very firm votes, and those would be from older Southerners.”22
He could have left it at that. The message that Nixon’s presidency could not survive had been delivered, to the president’s face, in the very house where the president had worked and slept for the past five and a half years. But Goldwater wasn’t finished. He didn’t just want his host to know he had lost others’ support. The president needed to know he couldn’t count on Goldwater, either. “Some are very worried about what’s been going on, and are undecided,” he said, “and I’m one of them.”23
Goldwater was overcome with the sadness he had felt upon reading the statement Dean Burch had brought him two days earlier.24 Beginning to tear up, he thought about how Nixon had been the most respected political leader on the face of the earth just two years ago when he was reelected in a sweeping landslide. Now he was ruined.25 That night, due in no small part to the courage of members of his own party to speak the truth to a lawless president, Richard Nixon began writing his resignation speech.
On that day, the nation witnessed the central truth that is the strength of America’s democracy: No one is above the law. Indeed, in a functioning republic, the rule of law is even more powerful than the president of the United States.
As phone calls go, it was one of the more frustrating of my life. Harriet Miers, the White House counsel for President Bush, was on one end of the line. Attorney General Greg Abbott of Texas and I were on the other. It wasn’t long into the forty-five-minute call before we realized that much more separated us than the fifteen hundred miles between Washington and Austin.
We had called the White House counsel to argue against a seemingly improbable position that the Department of State was urging on the president: to side with the United Nations against his home state.
The first female president of the Dallas Bar Association and later the head of the Texas State Bar, Harriet Miers was a talented trailblazer for women and an accomplished commercial litigator. She’s a friend. But her legal practice simply hadn’t covered the structural questions that undergird our constitutional system.
And she was perfectly content with allowing the Bush administration to side with the United Nations against U.S. sovereignty. This was wrong, and it was inconsistent with what I knew to be the president’s own conservative instincts.
Unfortunately, the issue was not being decided based on the Constitution. Instead it was being treated as a battle of personalities, an internal political matter. The year was 2005, the beginning of the second term of the Bush administration, and Condoleezza Rice and Alberto Gonzales were the newly appointed secretary of state and attorney general, respectively. In an effort to disprove the caricature of Bush as a “unilateral cowboy,” State wanted the United States to give in to the World Court; Justice, quite rightly, wanted to defend American sovereignty.
Gonzales and Rice were headed for an Oval Office showdown—all but unprecedented for two aides so trusted by the president—but then they blinked. They reached a middle ground, and agreed on a compromise. And, for Miers, that was the end of the story.
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Attorney General Abbott and I argued passionately that the president needed to be briefed on the profound consequences of ceding sovereignty to the United Nations, that it was unconstitutional and dangerous. But Miers was unpersuaded.
When we hung up the phone, Abbott and I simply shook our heads in dismay.
“Oh my God,” he said.
“Oh my God,” I agreed.
I was in the midst of litigating the biggest case of my tenure as solicitor general of Texas, and the lawyer with the ear of the president of United States had just made it clear that she was in no position to persuade him that his State Department was about to put him, and the federal government, on the wrong side of history, the Constitution, and the state of Texas—and increasingly, it was sad to say, on the wrong side of his own conservative principles.
In November 2002, a few weeks after Texans elected Greg Abbott to succeed John Cornyn (now my Senate colleague) as attorney general, I received a call from an old friend. “Greg Abbott is looking for a solicitor general,” he said. “Are you willing to have your name considered?”
The solicitor general is the chief lawyer for Texas before the U.S. Supreme Court and all state and federal appellate courts. Starting two or three decades ago, state attorneys general began creating solicitor general offices, modeled after the federal office, which represents the executive branch before the Supreme Court. Their goal was to improve the caliber of appellate advocacy for the states, which had often been outmatched by private advocates who had spent lifetimes honing their appellate skills.
“Give me a day to think about it,” I told my friend. On one hand, the job would undoubtedly provide fascinating and important work. On the other hand, it would mean leaving a position I liked. Working at the Federal Trade Commission was not my first choice in the Bush administration, but I’d come to enjoy it. To further complicate the question, Heidi had moved on from the U.S. Trade Representative’s Office to the Treasury Department, where she was very much enjoying running the Latin America office.
“Let me talk to Heidi,” I said, “and I’ll call you back tomorrow.”
At the time, Texas had one of the strongest state solicitor general’s offices in the country. That tradition began with John Cornyn, who, as attorney general, had created the new office and brought on a former U.S. Supreme Court clerk named Greg Coleman to head it. Coleman hired a cadre of very talented and experienced lawyers, and many of them have since spent their careers serving Texas in exemplary fashion.
When I talked with Heidi that night and asked her what she thought about the possibility of my becoming solicitor general, she told me I should definitely go for it. It was only afterward that she admitted she thought I didn’t have a prayer of getting the job, and so it had been easy for her to encourage me to toss my name in the hat.
Greg Abbott is a remarkable individual. Just after he had graduated from law school and taken the bar exam, Abbott was out running when a tree that had been struck by lightning fell on him and broke his back. He was in his twenties when he found himself paralyzed from the waist down.
Abbott spent over a year in rehabilitation dealing with the accident, but he also got on with his law career. After practicing law for several years, he became a respected state trial judge, and then a state Supreme Court justice. In 2002 he was elected attorney general, and he brought the attitude of a skilled jurist to an office that in far too many states is overly politicized.
Even after my interview with Abbott went well, I wasn’t optimistic about my chances. Attorney General Abbott, who was then in his mid-forties, had been frank in our meeting that he had some real concerns about my youth and inexperience in the courtroom. Those concerns were understandable. I was thirty-one years old, and I had only ever argued two cases in court—and none in front of the Supreme Court. If he hired me, I would be the nation’s youngest state solicitor general.
A couple of weeks after our meeting, in the early morning a few days before Christmas, he called me and said the job was mine if I wanted it. I was astonished, but not nearly as much as Heidi.
Heidi and I talked about it and prayed about it. It would mean weekly trips for her and me back and forth between Austin and Washington, where Heidi would continue to work. That would be tough for newlyweds. But like the frontier pioneers who chalked “GTT” on their front doors when they took off in search of new opportunities, in February 2003, I was gone (back) to Texas.
The most profound privilege of serving as solicitor general is representing Texas before the U.S. Supreme Court. Litigating a case before the Supreme Court is, as one might imagine, a unique experience. I say this having had the privilege of seeing it from both sides—as a clerk for the Chief and then as a litigator myself.
My first case before the Court is so etched in my memory that I can remember the exact date, October 7, 2003. I knew Chief Justice Rehnquist well enough to know that he would show his former law clerk no mercy. Neither would any of the other justices whom I had come to know during my clerkship. I had to be on top of my game—in fact, I felt a special burden. I had such deep respect for the justices that there was no way I could allow myself to disappoint them.
I prepared for my appearance for two months, and practiced for the oral argument with four grueling moot courts. Indeed, from the beginning of August until the night before the hearing, I did almost nothing other than work on the case. And all along I knew that we didn’t really have a chance of winning.
The case was Frew v. Hawkins. In it, lawyers representing a class of one million Texans accused the state of not complying with federal Medicaid requirements. At stake in Frew were hundreds of millions of dollars in taxpayer money and the question of whether an unelected federal judge can override budgetary decisions made by a state’s legislators. We argued that budgetary decisions should always be in the hands of the people’s representatives. But our opponents had a strong counterargument: It was state officials who had assented to the settlement agreement in the first place. A prior attorney general, Democrat Dan Morales, who later served prison time for corruption, had explicitly agreed to the consent decree. The court was merely enforcing an agreement to which the state had already affirmatively consented.
Even though I had serious doubts about our chances of winning, I felt ready for the oral argument—confident, even. I had prepared diligently, and I knew the case backward and forward. But once I went to bed, I didn’t sleep a wink the entire night. My stomach quivered, my mind raced. I kept staring at the ceiling, considering questions and answers over and over in my head. Perhaps my subconscious was telling me I wasn’t quite as confident as I had thought.
Lawyers tend to be superstitious. I had a favorite pair of boots—my lucky black ostrich “argument boots”—and I had worn them in every single argument I had given as solicitor general. But I hesitated before putting them on that morning.
Rehnquist was a stickler for wardrobe. Indeed, he’d previously reprimanded a lawyer for wearing a brown suit. “That is not appropriate attire for this courtroom,” the Chief told him. And there was an excellent chance that if he saw my boots, he would say the same thing to me.
Lacking the courage of my convictions, I’m ashamed to say that I went to my closet, put away my boots, and instead wiped away the years of dust on an old pair of wingtips.* I was already starting on an uncomfortable note.
One of the first things I saw as I made my way to the lectern was the familiar visage of Chief Justice Rehnquist in his flowing black robe with four gold stripes on either sleeve. I stood at the podium, breathed in deeply, and began with the customary “Mr. Chief Justice, and may it please the Court.”
Standing there, one of the first things that struck me was just how small the courtroom was. Although majestic—with an ornate ceiling inlaid with 24-carat gold—the courtroom itself is smaller than a typical trial court. Maybe it says something humbling about our democracy that the most important court in the land is not some grand chamber, but a room about the si
ze of a small basketball court. In fact, directly above it is an actual basketball court, which is nicknamed internally as “the highest court in the land.”
In such a small environment, I stood all of about seven feet from the justices, so close I could almost shake the hands of nine of the smartest and most dangerous legal minds in the United States.
Many people think of TV shows like Perry Mason or Law & Order when they imagine a courtroom argument, but proceedings in the Supreme Court are quite different from those of lower courts. There are no witnesses. There is no evidence. There are no grand orations. Instead, Supreme Court arguments consist of relentless questioning from the justices in cases about which they are already expert. In typical arguments, advocates will utter just a few sentences before the justices begin firing hostile questions at them. In a contentious case, for the rest of the argument, the blitz of questions doesn’t cease.
For my thirty minutes in Frew, there was not a single friendly question directed toward me. The justices were ripping me limb from limb. I felt like a chunk of tuna thrown to a school of sharks. For a long time, my answer to questions were a combination of “yeah . . . wha . . . but . . .”
Many oral arguments are lost on a single question that the justices ask repeatedly (with different variations) and for which there is simply no good answer. In Frew, that question was some version of “How can you say the state didn’t consent to a consent decree?”
By the time Chief Justice Rehnquist closed the session—“Thank you,” he said in his deep baritone, “the case is submitted”—it was pretty clear the Court was going to rule against me.
And, just a few months later, it did. Unanimously, 9–0. After the case was decided, I visited with the Chief Justice in his chambers over tea.
