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• Cruz’s comment ignores that Republicans gave diametrically opposite treatment to President Barack Obama’s nomination of Merrick Garland and President Donald Trump’s nomination of Amy Coney Barrett.
• As the party controlling the Senate, the Republicans had the right to exercise their power as they saw fit. But there was no consistency on their part when they denied Garland a hearing for nearly a year yet rushed through Barrett’s nomination within weeks — other than advancing the party’s goals.
Texas Sen. Ted Cruz joined his Republican colleagues last week in criticizing Democratic measures that would expand the nine seats of the U.S. Supreme Court to 13.
"You didn't see Republicans when we had control of the Senate try to rig the game. You didn't see us try to pack the court," Cruz told reporters outside the Supreme Court building on April 22.
Cruz was referring to the political combat that took place in the wake of Justice Antonin Scalia’s sudden death in 2016. During his presidential bid, Cruz highlighted the importance of having a Republican president whose appointments could give the Supreme Court a conservative lean.
Following Scalia’s death, Cruz declared the 2016 presidential election a "referendum on the Supreme Court" and joined Senate Republicans in blocking any nomination put forth by President Barack Obama. They blocked Obama’s nominee, Merrick Garland, for more than a year, arguing that the American public had a right to weigh in first via the election. (Garland is now serving as Biden’s attorney general.)
Four years later, Republicans, led by Senate Minority Leader Mitch McConnell, raced to confirm Amy Coney Barrett to the court after the death of Ruth Bader Ginsburg, just weeks before the 2020 election.
In other words, McConnell used divergent approaches to the Garland and Barrett nominations to benefit the Republicans.
When asked why the GOP's actions don't qualify as partisan gamesmanship, Cruz's spokesperson Steve Guest doubled down on Cruz's statement.
"Absolutely nothing was rigged by Republicans. Presidents nominate judges. The Senate gives or withholds advice and consent. Those are the rules and Republicans followed them," Guest said.
As the Barrett nomination was under consideration, PolitiFact wrote Republicans did have the power to do what he did, but we gave McConnell a Full Flop for changing his position between 2016 and 2020.
In both cases, McConnell offered a justification that confirmations have proceeded when the presidency and the Senate are in unified control and have stalled when the two are under divided control. However, this isn’t a higher principle that led McConnell to his decision; it’s a cherry-picked, after-the-fact justification for the raw exercise of power he undoubtedly has.
Legal experts were unimpressed with Cruz’s assertion that Republicans didn’t "rig the game" with the Garland and Barrett nominations.
Paul M. Collins Jr., a professor of legal studies and political science at the University of Massachusetts-Amherst, said that the refusal to hold an up-or-down vote on Garland’s appointment in the hope that a Republican would win the 2016 presidential election "involved an effort to temporarily alter the size of the court to advance the agenda of the Republican Party," Collins said.
Paul Finkelman, a legal historian who is currently president of Gratz College, agreed, saying it was "a political manipulation of the system," he said. "And that is not how it’s supposed to work."
Emily Berman, an associate professor of law at the University of Houston, said it's hard to not classify Republicans’ 2016 maneuvering as "rigging the game." Deciding that there's an arbitrary deadline for judicial nominations during the Obama presidency, then ignoring that rule under the Trump presidency is, to Berman, a clear attempt to bring partisan preferences into the court.
"I don't know what else you call it. When you use your majority to make up the rules as you go along in ways that benefit your party, that's kind of the definition of rigging the game. You make the rules that lead to the outcome that you desire," Berman said.
Cruz was a major proponent of Republicans’ 2016 blockade to Garland’s confirmation. With less than a month before Election Day in 2016, Cruz went as far as to say that he was in favor of blocking a liberal nominee under Hillary Clinton indefinitely.
While campaigning in Colorado for a Senate candidate, Cruz said that there is a "long historical precedent for a Supreme Court with fewer justices," Politico reported.
"I would note, just recently, that Justice (Stephen) Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have," Cruz said.
Cruz said, "You didn't see Republicans when we had control of the Senate try to rig the game."
Republicans treated Garland’s nomination and Barrett’s nomination differently because they held the Senate majority and were able to exercise their power in ways that benefited their party’s goals.
But that doesn’t mean they weren’t rigging the game. There was no consistency to the way they handled the two nominations — the approaches were exactly opposite.
We rate this claim False.
Tweet, The Recount, April 22, 2021
Email interview with Sen. Ted Cruz Spokesperson Steve Guest, April 23, 2021
Texas Tribune, Cruz: "Grave Stakes" for U.S. Supreme Court, Feb. 14, 2016
Politico, Cruz: GOP may block Supreme Court nominees indefinitely, Oct. 26, 2016
PolitiFact, "Mitch McConnell flip-flops on considering Supreme Court justices in a presidential election year," Sept. 22, 2020
PolitiFact, "Biden forms commission to study changing Supreme Court," April 15, 2021
PolitiFact, The continuing battle over 'court packing' and the Supreme Court, April 23, 2021
White House, "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States," April 9, 2021
Interview with Paul Finkelman, legal historian and president of Gratz College, April 19, 2021
Interview with Emily Berman, Associate Professor of Law at the University of Houston, April 23, 2021
Email interview with Paul M. Collins Jr., a professor of legal studies and political science at the University of Massachusetts-Amherst, April 19, 2021
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