Senate should 'confirm (SCOTUS) nominee before Election Day': Sen. Ted Cruz

George Stephanopoulos interviews Sen. Ted Cruz, R-Texas, on "This Week."
10:23 | 09/20/20

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Transcript for Senate should 'confirm (SCOTUS) nominee before Election Day': Sen. Ted Cruz
Senator Ted Cruz is our next guest. Here's what he said about nominations in election year vacancies in 2016 when Barack Obama was president. It has been 80 years since a supreme court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year. And senator Ted Cruz joins us now. Good morning, senator. Thanks for joining us this morning. You and your colleagues were pretty clear back in 2016 that an election year is a matter for the people to decide. Is it fair for people to conclude right now that you have changed your tune because the president is a Republican, not a Democrat? Well, George, I'm happy to talk about that, but I want to start by just acknowledging the extraordinary career justice Ginsburg had. She was a trailblazing advocate, one of the finest supreme court litigators to have ever lived. She served for nearly three decades on the court. I argued nine times before justice Ginsberg on the court. She was a brilliant justice. She was -- her questions were always incisive. She was a careful lawyer, and she's led a remarkable legacy, and Heidi and I, our prayers are with her family who are grieving the loss of someone who led an extraordinary life. Now when the vacancy occurs, that naturally leads to the question of what will happen next, and the answer in terms of what is going to happen next as we know now, the president is going to make a nomination. When I called for the president to make the nomination this week, he's going to make the nomination this week, and I believe for the right thing to do is this senate to take up the nomination and confirm the nominee before election day. Now on the question of precedent, look. We had this fight at the end of the Barack Obama term, and at the time all the Democrats were says, confirm the nominee, confirm the nominee, and all the Republicans were saying, we're not going to confirm the nominee. You played a situation, and a quote from me in 2016. We can play that game all day I don't disagree with that. I'm trying to get you to concede -- this is about who has the votes and the power at any given time, right? So actually it isn't. If you look at history, and look at what the precedent is, this has happened 29 times. 29 times, there has been a vacancy in a presidential election year. Now presidents have made nominations all 29 times. That's what presidents do. If there's a vacancy, they make a nomination. What has the senate done? There's a big difference in the senate with whether the senate is of the same party of the president or a different party of the president. When the senate has been of the same party of the president, the vacancy occurs in an election year of the 29 times, those are 19 of them. Of the 19, the senate has confirmed those nominees 17 times. If the parties are the same, the senate confirms the nominee. When the parties are different, that's happened ten times. Merrick Garland was one of them. Of those ten, the senate has confirmed the nominees only twice, and there's a reason for that. It's not just simply your party, my party. The reason is it's a question of checks and balances, and in order for a nomination to go forward, you have to have the president and the senate -- in this instance, the American people voted. They elected Donald Trump. A big part of the reason they elected Donald Trump is because of the Scalia vacancy, and they wanted principle constitutionalists on the court, and the big reason we have a Republican majority elected in 2014, re-elected in 2016, grown even larger in 2018, a major issue in each of those elections is the American people voted and said, we want constitutionalist judges, and so the president was elected to do this, and the senate was elected to confirm this nomination. As you know, generally those picks in an election year have been consensus picks. You made your point right now. What I want to get to now is whether you're in step with most Republicans right now in voting before the election. Senator Mcconnell seems to have not made up his mind on whether that's best for his majority. You're pushing him here, right? Let me point out in terms of what has been done in the past, which is when you worked in the white house, you worked for bill Clinton. Bill Clinton made two supreme court nominations, justice Ginsburg and Stephen Breyer. Stephen Breyer, when he got to the court of the appeals, it was an even more dramatic situation than this. Jimmy Carter appointed him on November 10, 1980. After the presidential election. Jimmy Carter had just lost to Ronald Reagan and he appointed him anyway right after the election. Do you know what the senate did? The voters had thrown it out and said, we'll have a Republican senate. They confirmed it in the lame duck. That was Bill Clinton's second supreme court nominee. There's a long history here, and everyone knows that if the president were Joe Biden or Hillary Clinton and chuck Schumer were the majority leader, the odds are 100% -- 100% -- there's no universe in which Nancy Pelosi would not have been the previous speaker saying, we are going to confirm this seat, and at the end of the day, how do you resolve those differences? Well, the American do, and the American people did by electing a president and a senate committed to justices who will defend free speech, and religious liberty and the second amendment and our fundamental rights because of all of those rights are one vote away. Do you have the votes now to have -- to confirm before the election? You know, I don't know. I don't know the answer to that. I believe we will. I think it is particularly important that the senate take it up and confirm this nomination before the election because Joe Biden has been explicit. He has said if he doesn't win, he's going to challenge this election. He's going to go to court. He's going to challenge it and he's hired a big legal team. Hillary Clinton has told Joe Biden under no circumstances should you concede. Given that, there is a serious risk of a constitutional crisis if Joe Biden is bringing litigation -- Senator, I have to stop you. As you know, president trump has been the one talking about rigged elections. Joe Biden has not explicitly said he's going to challenge the election. Of course, they're going to have teams of lawyers as every campaign always does to look at irregularities. True or false that Hillary Clinton said don't concede? I was asking -- you said Joe Biden said it. I challenge your statement about So you agree Hillary Clinton said don't concede. Joe Biden has hired a legal team -- As has president trump. This is a topic, you know, 20 years ago I was part of the legal team that litigated bush versus gore for George W. Bush. I was a young lawyer then. I wrote a book called "One vote causeway: -- Away: How a single supreme court seat can change history." In one of the chapters, it talks about bush versus gore. It talks about the epic battle where Al gore challenged the election results and for 36 days, the country was held in chaos. Well, if Joe Biden does that again this year, and we have an 8-8 court, an equally court 4-4 can't decide anything. That could make this presidential election drag on weeks and months and well into next year. That is an intolerable situation for the country. We need a full court on election day given the very high likelihood that we're going to see litigation that goes to the court. We need a court that can give a definitive answer for the country. Finally, senator, this is one of those situations where Republicans and Democrats have switched sides. Four years ago, Democrats missed it because of a split court. One of your colleagues put out a tweet and said, two months ago, I pledged a vote only for scotus nominees who understand and acknowledge that roe V. Wade was wrongly decided. I stand by that commitment and call on my Republican senators to take the same stand. Will you take that stand? Well, I don't believe that's the right question to ask, you know, I mentioned a minute ago the book I have "One vote away" that's coming out in a couple of weeks. I have an entire chapter devoted to how you should make supreme court nominations and I think what you should look for is a proven record where Republicans have gotten this wrong is where we've rolled the dice. On the democratic side, Democrats bat almost 1,000. Almost every democratic nominee votes exactly as the Democrats want. On the Republican side, we maybe bat .500. A full half of Republican nominees end up galloping to the left and undermining the constitution. Here's how you tell the difference. You look for a proven record of has this individual stood up for the institution, defended free speech, defended religious liberty, defended the second amendment, and if they suffered the slings and arrows, has the press criticized them and has the press attacked them, and have they stood strong? If you look at the justices who stayed faithful to their oath, people like Antonin Scalia, people like justice Thomas, people like my old boss, chief justice William Rehnquist. Every one of them followed that pattern and that's what I urge the president to nominate, and I will say, one final observation, when I was clerking for chief justice Rehnquist, he obviously worked every day with justice he admired what a careful lawyer consistently on the lawyers of the left, the judges on the left. Chief justice Rehnquist was almost most willing to give an important opinion to justice Ginsburg because she wrote narrow, careful opinions. That's important, but it's also important what the justices are doing, and I believe the American people want constitutionalists. We're one vote away from seeing our religious liberty votes stripped away, from our free speech stripped away, from our second amendment stripped away. This election matters and I think it is the most important issue in 2020, electing presidents and a senate who will nominate and confirm strong constitutionalists to the court. Senator Cruz, thanks for your time this morning. Thank you, George.

This transcript has been automatically generated and may not be 100% accurate.

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