Good morning Austin:
Yesterday, at 4 p.m., a fashionably late time for a press conference, the four men in their matching dark suits made their way into the Governor’s press conference room at the Capitol – an event appropriately packed with press – for an event that was staged mostly, it seemed, to savor the moment.
Since Obama became president, Gov. Greg Abbott had built his career on suing the president, and on Monday night, the very eve of his first State of the State address – the tangible fruits of his labor – Andrew Hanen, a federal judge in Brownsville, had delivered a 123-page ruling that stopped President Obama’s executive immigration action dead in its tracks. The judge’s order was a consequence of a lawsuit brought by Abbott Dec. 3, in the waning days of his 12-year tenure as attorney general.
“My 31st and last lawsuit against President Obama may turn out to the one that has the greatest constitutional consequence,” Abbott said with great satisfaction.
General Abbott had been as good as his title in this case, marshaling a phalanx of states – eventually 25 in all – to join in the lawsuit, and offering mapmakers a new way to split up America.
The man sitting to Abbott’s right – Sen. Ted Cruz – was a leading figure in the fight against the president’s immigration orders in Washington. But the bond between Abbott and Cruz, and their relationship in developing Abbott’s practice of suing Obama, was far deeper than that.
As Jeffrey Toobin wrote in his excellent June 2014 profile of Cruz in The New Yorker, The Absolutist:
In the nineteen-nineties, several states created the position of solicitor general, a chief appellate advocate, modeled on the one in the United States Department of Justice, which represents the federal government before the Supreme Court. The Texas job was started in 1999, when John Cornyn was the state attorney general. (Cornyn is now Cruz’s senior colleague in the Senate.) But when Greg Abbott became attorney general of Texas, in 2002, he decided to expand the responsibilities of the solicitor general beyond simply handling appeals in cases involving the state. Abbott had served on the Texas Supreme Court and developed strongly conservative views on legal issues. “I wanted someone who had the capability to handle appellate arguments in court, but I wanted to do so much more,” Abbott told me. “I wanted Texas to be a national leader on the profound legal issues of the day. I wanted us to be able to have a larger footprint, a larger impact.”
Though Cruz was only thirty-two, he persuaded Abbott that he was up to the job. In 2003, he moved to Austin. “We wanted Ted to take a leadership role in the United States in articulating a vision of strict construction. I look for employees with batteries included,” Abbott said. “Ted was supercharged and ready to go.” In effect, he asked Cruz to roam the country in search of cases that might advance the Constitutional agenda that Cruz had first embraced as a teen-ager. Sometimes Texas was an actual party to the cases Cruz argued, and sometimes he simply volunteered to write friend-of-the-court briefs for causes that he and Abbott supported. They intervened in cases supporting gun-owners’ rights, states’ rights, and the right to religious expression in public places. In one high-profile case, Cruz wrote the brief that persuaded the court to approve a monument of the Ten Commandments outside the state capitol, in Austin. (Abbott argued that case.)
In just over six years, Cruz argued nine cases before the U.S. Supreme Court, more than any other Texas lawyer during this period and more than all but a few lawyers in the country. In addition, he filed dozens of briefs in federal and state appeals courts. In his arguments before the high court, Cruz won five cases and lost four, but that understates the magnitude of his success. The cases he lost were rather minor; in one of them he appeared as a friend of the court. The cases he won had more drama and importance.
This latest lawsuit – which also seems destined to end up before the Supreme Court – is one of great “drama and importance,” like the Ten Commandments case, only this one suggests an Eleventh Commandment: Thou shalt not “grant amnesty to millions of illegal immigrants based entirely on one man’s perspective.”
That part in quotes comes from Attorney General Ken Paxton’s comments at yesterday’s press conference.
Paxton, Abbott’s successor, was seated to the governor’s left.
Paxton, by the way, is having a great run.
First and foremost, he was elected attorney general by a nearly 21 percentage point margin over a Democrat who couldn’t budge the needle even with the name Sam Houston.
Second, “General Paxton” sounds like “General Patton,” and that’s got to be a good thing, especially in Texas.
Then, last month, the Public Integrity Unit of the Travis County District Attorney’s office – the folks enmeshed in the indictment that is complicating Rick Perry’s path to the White House – closed out their probe of Paxton, though, as reported by Chuck Lindell and Jazmine Ulloa in the Statesman, that was less a ringing declaration of Paxton’s innocence than an acknowledgement of their office’s lack of jurisdiction:
The Travis County district attorney’s office has concluded its investigation into securities law violations by Attorney General Ken Paxton without filing charges.
An investigation by the agency’s Public Integrity Unit determined that Travis County lacked jurisdiction over the Paxton allegations, District Attorney Rosemary Lehmberg said Thursday.
“Any conduct that might constitute an offense occurred outside of Travis County, and venue for any further investigation would be in the county where the conduct occurred,” Lehmberg said in a statement.
And then, icing on the proverbial cake, at yesterday’s press conference, Lt. Gov. Dan Patrick, seated to Paxton’s left, described Cruz, Abbott and Paxton as “three of the greatest constitutional minds in the country. We’re blessed to have them in Texas.”
If the immigration case ends up before the Supreme Court, arguing on behalf of Texas will be a plum assignment. If this were a movie, there would be a little-known codicil in Texas law that would allow Governor Abbott to step back into this old role and argue the case, or better yet, Sen. Cruz, or best of all, in buddy-film tradition, both Abbott and Cruz.
As it is, Paxton’s office is replete with Cruzers. Scott Keller, formerly Cruz’s chief counsel, was named by Paxton to fill Cruz’s old role as solicitor general; Bernard McNamee, Sen. Cruz’s senior domestic policy advisor, was named Paxton’s chief of staff, and Cruz’s chief of staff, Chip Roy – who helped Gov. Perry with his book, Fed Up! – was Paxton’s choice to be his first assistant attorney general.
Patrick, meanwhile, is in his political approach and appeal, most similar to Cruz. And he certainly owes Cruz for softening up David Dewhurst by defeating him for U.S. Senate in the 2012 Republican primary as a prelude to Patrick defeating Dewhurst for lieutenant governor in the 2014 Republican primary. That Patrick was a Dewhurst stalwart against Cruz in 2012 is, I suppose, now a footnote to history, as is the fact that they were seated at opposite ends of the table at yesterday’s press conference.
As Toobin recounts, Abbott’s and Cruz’s career arcs were also inextricably linked:
In 2010, Greg Abbott was planning on running to succeed Rick Perry as governor, and Cruz decided to step out on his own and run for attorney general. By this point, Cruz had reached such a level of prominence as solicitor general that he had basically cleared the field to take over for his boss. But Perry decided to run for reëlection and, as a result, so did Abbott. Cruz stepped down as solicitor general and joined a law firm in Houston. In short order, another opportunity presented itself: Kay Bailey Hutchison was retiring from the U.S. Senate, opening up a seat in the 2012 election.
In the wake of Judge Hanen’s ruling, John Cassidy wrote in The New Yorker:
In Washington, where every day provides another opportunity to wage partisan warfare, twelve months is an eternity. The ruling had barely been issued when attention shifted to the battle du jour, which just happens to be over immigration reform and the funding of the Department of Homeland Security. Fearful that the new rules about deportations would go into effect before Hanen or anybody else had a chance to stop them, the Republicans have been threatening to defund the entire department unless the new funding bill includes measures designed to gut immigration reforms. Democrats, relying on a filibuster, have refused to allow such a proposal to advance.
On the basis of what passes for common sense outside the Beltway, you might suspect that the Republicans, once Judge Hanen had done their work for them, would declare victory and move onto other issues. But no. “We will continue to follow the case as it moves through the legal process,” Speaker John Boehner said in a statement. “Hopefully, Senate Democrats who claim to oppose this executive overreach will now let the Senate begin debate on a bill to fund the Homeland Security department.” Translated into English, this means that Republicans are still threatening to close down the department at the end of next week if they don’t get their way. Or, in the words of Ted Cruz, “At a time when we face grave national-security threats, at home and abroad, it is the height of irresponsibility for the Democrats to block this funding in an extreme attempt to save Obama’s amnesty, which a federal judge has just declared illegal.”
Only in the upside-down world of Washington does refusing to accept “you win” as an answer make sense. Boehner may have been reëlected handily at the start of the year, but he still needs the support of rank-and-file G.O.P. members, many of whom campaigned vigorously against any suggestion of amnesty for the undocumented. Just a few weeks into a new term, the Speaker can’t risk being outflanked on the right. And so it’s onward into battle.
I presume that Cassidy read Toobin’s piece and he knows that one man’s upside down is another man’s right-side up, and the longer one is in the thrall of Cruz’s logic and rhetoric, the more he seems planted in a plausible reality that, at the very least, is, in the context of Republican presidential politics, moves from the realm of reasonable to almost unassailable.
In both law and politics, I think the essential battle is the meta-battle of framing the narrative,” Cruz told me. “As Sun Tzu said, Every battle is won before it’s fought. It’s won by choosing the terrain on which it will be fought. So in litigation I tried to ask, What’s this case about? When the judge goes home and speaks to his or her grandchild, who’s in kindergarten, and the child says, ‘Paw-Paw, what did you do today?’ And if you own those two sentences that come out of the judge’s mouth, you win the case.
I don’t think there is anyone better than Cruz in “framing the narrative,” in hashtag/bumper sticker terms.
As I wrote in today’s story on yesterday’s press conference, for Cruz it is the Senate Democrats, not he, who are the figures of irrational obstinacy on the Homeland Security funding. He is simply following the political logic dictated by the clear outcome or the 2014 election:
Cruz said it is Obama who has placed Senate Democrats in an untenable position by making the 2014 elections into a referendum on his policies, with immigration at the top of the list. Republicans won a resounding victory, gaining control of the Senate, and Republicans now have an obligation to fulfill the mandate of their election, Cruz said.
As Toobin explains it, Cruz’s ability to synthesize and ultimately simplify his arguments has everything to do with his experience as an appellate lawyer:
Cruz came to the Senate, in 2012, and then to national prominence, through an unusual route. Like many politicians, he is a lawyer, but his legal expertise is of a special kind, which helps explain both his fame and his notoriety. Before he ran for the Senate, Cruz was on his way to becoming one of the most notable appellate advocates in the country. “He was and is the best appellate litigator in the state of Texas,” James Ho, who succeeded Cruz as solicitor general of the state, told me. Trial lawyers, civil or criminal, are often brought into cases when there are compromises to be made; much of their work winds up involving settlements or plea bargains. But appellate litigators, like Cruz, generally appear after the time for truce has passed. Their job is to make their best case and let the chips fall where they may. That is the kind of politician Cruz has become—one who came to Washington not to make a deal but to make a point. Citing Margaret Thatcher, Cruz often puts his approach this way: “First you win the argument, then you win the vote.”
Cruz is all about argument, and if that makes him a very unpopular man with his Senate colleagues, it is entirely a virtue in the realm that really interests him now – presidential politics.
Cruz’s ascendancy reflects the dilemma of the modern Republican Party, because his popularity within the Party is based largely on an act that was reviled in the broader national community. Last fall, Cruz’s strident opposition to Obamacare led in a significant way to the shutdown of the federal government. “It was not a productive enterprise,” John McCain told me. “We needed sixty-seven votes in the Senate to stop Obamacare, and we didn’t have it. It was a fool’s errand, and it hurt the Republican Party and it hurt my state. I think Ted has learned his lesson.” But Cruz has learned no such lesson. As he travels the country, he has hardened his positions, delighting the base of his party but moving farther from the positions of most Americans on most issues.
When Toobin wrote about Cruz nearly a year ago, the senator was in the midst of a particularly hot streak:
Last fall, though, he nearly single-handedly precipitated the shutdown of the federal government. Today, polls show Cruz in the thick of the crowded race for the 2016 Republican Presidential nomination, along with Rand Paul, Marco Rubio, Chris Christie, and others. Last year, he won the Values Voter Summit’s Presidential straw poll. Last month, he won the straw poll at the Republican Leadership Conference and, not surprisingly, the straw poll at the Texas G.O.P. convention. The speed of Cruz’s rise makes Barack Obama’s ascent seem almost stately.
At the present moment, it would appear that the Cruz fever has broken.
According to the RedState Presidential Power Rankings, Cruz now ranks seven among the top ten potential Republican presidential candidates.
(According to RedState, “These predictions are based on polling data, media buzz, momentum, and of course the secret sauce formula.”)
In this most recent ranking, Cruz trailed, in order, Jeb Bush, Scott Walker, Chris Christie, Rand Paul, Marco Rubio and Mike Huckabee.
Here was RedState’s rationale for the Cruz ranking:
Cruz rebounded back to earth with the most recent round of polling with especially disappointing numbers in the Southern states (South Carolina and Virginia) where he was not able to top 5 per cent. That said, Cruz on a debate stage still stands the possibility of stealing the show a la Newt in 2012. The most obvious avenue of attack against Cruz, that “he doesn’t play well with other Republicans in Congress” will likely be a feature rather than a bug by the time the campaign season begins in earnest.
Cruz as ahead of Bobby Jindal, Ben Carson, and last on the list of ten, Rick Perry, of whom Red State wrote:
Another week, another very bad set of polls for Perry who continues to struggle to break even 3%, even in the South. Perry is no doubt on the floor, but he stands a reasonable chance of getting back up and redeeming himself with the voters if he can put his disastrous 2012 campaign behind him.
Sub-Perry there was this:
Not on the list: Rick Santorum (No serious chance of winning at all), Mike Pence (probably not running), Sarah Palin (No chance and also not running), Lindsay Graham (LOL)
Meanwhile, The Fix, at the Washington Post, had Cruz tied for sixth with Ohio Gov. John Kasich, behind Bush, Walker, Rubio and Paul. and ahead of Jindal, Huckabee and Indiana Gov. Mike Pence. No Perry in their top ten.
Of Cruz, The Fix’s Chris Cillizza and Aaron Blake wrote:
Remember that while Cruz is roundly derided by his colleagues — Democrats and Republicans — in the Senate, he may be closer to how the Republican base feels on most issues than anyone else running.
Indeed, they wrote this under the headline, Ted Cruz is the most underrated candidate in the 2016 field:
A prominent Republican consultant — who isn’t working for any of the 2016 presidential candidates and who has been right more times than I can count — said something that shocked me when we had lunch recently. He said that Texas Sen. Ted Cruz had roughly the same odds of becoming the Republican presidential nominee as former Florida governor Jeb Bush.
Think of the Republican primary field as a series of lanes. In this race, there are four of them: Establishment, Tea Party, Social Conservative and Libertarian. The four lanes are not of equal size: Establishment is the biggest followed by Tea Party, Social Conservative and then Libertarian. (I could be convinced that Libertarian is slightly larger than Social Conservative, but it’s close.)
Obviously the fight for the top spot in the Establishment lane is very crowded, with Bush and possibly Wisconsin Gov. Scott Walker leading at the moment. Ditto the Social Conservative lane with former Arkansas Gov. Mike Huckabee, Ben Carson and Rick Santorum all pushing hard there. The Libertarian lane is all Kentucky Sen. Rand Paul’s but, as I noted above, it’s still not that big.
Which leaves the Tea Party lane, which is both relatively large and entirely Cruz’s. While Paul looked as though he might try to fight Cruz for supremacy in that lane at one time, it’s clear from his recent moves that the Kentucky senator is trying to become a player in a bunch of lanes, including Social Conservative and Establishment.
So, Cruz is, without question, the dominant figure in the Tea Party lane. What that means — particularly in the early stages of the primary process in places like Iowa, New Hampshire and South Carolina — is that he will likely be able to win, place or show repeatedly, racking up enough strong-ish performances to keep going even as the Establishment lane and the Social Conservative lane begin to thin out. (Cruz’s ability to raise money, which remains a question, is less important for him than it is for other candidates — especially those in the Establishment lane. His people are going to be for him no matter how much — or little — communicating he does with them.)
So, watch Cruz. The combination of his running room as the race’s one true tea-party candidate, his debating and oratorical skills and his willingness to always, on every issue, stake out the most conservative position make him a real threat.