Attention judicial nominees: Senator Ted Cruz (R-Texas) will want to know which U.S. Supreme Court justice's judicial philosophy—from the Warren, Burger or Rehnquist courts—is most analogous with yours.
And he’d like to hear about your take on the affirmative action ruling in Grutter v. Bollinger, 539 U.S. 306, 343 (2003), and state sovereign interests case, Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528, 552 (1985). And when should a classification be subjected to heightened scrutiny under the Equal Protection Clause?
The written questions Cruz has submitted to judicial nominees in the first month of the 113th Congress gives a sneak peek into the focus of the freshman senator and former solicitor general of Texas, who is expected to be a force in the confirmation process.
“It shows Ted Cruz’s seriousness, in that he’s going to take his role seriously and is going to ask high-level questions and not just the typical questions from other senators,” said Washington lobbyist Vincent Eng of Veng Group, who has carved out a niche advocating for judicial candidates in the Senate. “The amount of questions and the complexity was surprising.”
Cruz and the other new freshman Republican on the Senate Judiciary Committee, Senator Jeff Flake (R-Ariz.), posed the written questions to judicial nominees who had their confirmation hearings before the committee last session. Those nominees are getting committee votes without new hearings this year, so the new senators got a chance to question them in writing.
Cruz asked nine questions ranging from presidential power to individual rights. Flake asked four multipart questions, focusing on “original-meaning originalism” for interpreting the Constitution and the commerce clause.
In contrast, the freshman Democrat on the committee, Senator Mazie Hirono, posed no questions of the returning nominees.
The judicial nominees took different approaches when it came to Cruz’s first question to each nominee – going to the heart of judicial philosophy.
Richard Taranto, a nominee for the U.S. Court of Appeals for the Federal Circuit, repeated what he said in his confirmation hearing when asked a similar question. Taranto ruled out all living judges, and then identified “the second Justice Harlan as a Justice whose overall record, to the extent I am familiar with it, seems to me to embody to a remarkable degree the aspects of judging that I prize.”
Robert Bacharach, a nominee for the U.S. Court of Appeals for the Tenth Circuit, simply concluded his answer with: “I cannot single out one Supreme Court Justice whose judicial philosophy is most analogous to mine.”
And Patty Shwartz, a nominee for the U.S. Court of Appeals for the Third Circuit, turned the question around and described how she would decide cases in front of her. “Any judicial officer who adopts this approach would have an analogous philosophy,” Shwartz wrote.