My old boss Chuck Grassley made some news recently by suggesting that Mike Lee or Ted Cruz would be his preferred successors to Justice Alito were he to retire (an event whose probability is being drastically overstated). It’s understandable from his position on the Judiciary Committee; they and Josh Hawley are easily the most talented lawyers on the committee. It’s also a bad idea.
Being a senator and being an appellate judge are very different roles. Most basically, the Senate is about politics and the courts are about law. That may seem reductive, but it’s not. There are political aspects to the law just as there are legal aspects to politics, but the mode of analysis is simply different. “But,” one might object, “Jackson and Sotomayor do politics not law. Why shouldn’t we do the same?” Indeed they do: In dissent. Victories at the Supreme Court require five votes and the other five Republican justices (even the chief justice) are engaged in the business of law and not politics. To count to five you need a legal conservative, not a political conservative.
The small-p politics are very different, too. At first glance senatorial clubbiness may seem effective on a multi-member court but the justices aren’t schmoozers. Senators are adept at telling jokes while they discuss football and golf. They’re also very good at comparing notes on fundraising and polling when up for reelection. That just doesn’t translate to the Court.
At the end of the day a successful justice persuades his or her colleagues by force of reasoning, typically written. It’s not by articulate and impassioned speeches at lunch (a Ted Cruz specialty) or by ginning up rabid twitter mobs (Mike Lee’s current method of persuasion).
Senators need to quickly become knowledgeable enough on an ever-changing array of issues — knowledgeable enough to ask questions in a hearing or to discuss with constituents or to write a bill or to vote. Some senators become experts in discrete areas of law — Cruz, for example, is quite formidable when it comes to election law, while Lee has long been a leader on criminal-justice reform. The work of the Senate is iterative and often indeterminate.
Justices, on the other hand, have to consistently master the intricacies of the most complex legal questions and do so in order to issue final judgments. It’s an entirely different set of legal skills.
Legal skills, like any, improve with practice and deteriorate with time. Natural talent aside, the daily repetitions of reading briefs and writing opinions simply makes circuit judges better equipped for the work of the Supreme Court. Go back and watch the exchange between Neil Gorsuch and Chris Coons on Hobby Lobby. It was not a fair fight, and Coons is one of the best lawyers in the Senate. It’s a staggering example of the difference between mastery and “knowledgeable enough.”
There are also electoral politics to consider. Under Texas law, were Cruz appointed to the Court in September, his replacement would almost certainly be standing for election months later. Do we really want both Texas seats up during a Democratic wave election? Let’s say John Cornyn — God forbid — loses his primary. Abbott won’t be able to appoint him to the other seat while he’s currently serving. Maybe if Cornyn resigned only to be replaced by Paxton in his current seat? The mind reels at the complexity. If Cornyn wins his primary, Paxton could be appointed to replace Cruz. Either way you’d have the generally popular Cornyn running for one seat alongside a damaged candidate all for the prize of the most dysfunctional delegation in the Senate. One way or the other, it introduces an unstable variable into an already complex situation of deadly importance. We can’t afford to gamble with Senate seats.
And for what? Brilliant though Cruz is, would he be materially better as a justice than Andy Oldham? Or, for that master, Amul Thapar or John Sauer or Patrick Bumatay or Lisa Branch or Neomi Rao? For the reasons discussed above the answer is almost certainly no.
The fact is that the current Senate is the most favorable to confirming a conservative justice of any Senate in a century. The majority maker isn’t Jeff Flake or Mitt Romney but Mitch McConnell. The president can swing for the fences on conservatism without worrying about confirmability; there’s no need for senatorial prerogative.
It’s all academic, anyway. Cruz has previously said he wants to stay in the political fight. (It’s a good thing, too, because there are few more articulate opponents of isolationism on the right.) Lee has made it very clear that he wants to stay in the Senate when responding to efforts to draft him to the Department of Justice. (“I’m not going anywhere,” he tweeted. This presumably includes across the street.) It’s better to focus on the actual field, which probably looks a lot like the names listed above.