On Sunday, Ted Cruz told Fox News that one of the reasons that he opposes the nomination of Ketanji Brown Jackson to the Supreme Court is that she was a public defender. “Public defenders,” Cruz said, “often have a natural inclination in the direction of the criminal.” “Their heart,” he added, “is with criminal defendants.”
From this, one must conclude that Ted Cruz has a “natural inclination” toward state laws that ban dildos.
A few years ago, when Cruz was Solicitor General of Texas, he filed a brief in defense of a state law that banned sex toys. Among other things, that brief insisted:
that Texas, in order to protect “public morals,” had “police-power interests” in “discouraging prurient interests in sexual gratification, combating the commercial sale of sex, and protecting minors.” There was a “government” interest, it maintained, in “discouraging…autonomous sex.” The brief compared the use of sex toys to “hiring a willing prostitute or engaging in consensual bigamy,” and it equated advertising these products with the commercial promotion of prostitution. In perhaps the most noticeable line of the brief, Cruz’s office declared, “There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.”
When asked about this, Cruz explained on TV that:
I spent five-and-a-half years as the solicitor general in Texas, I worked for the attorney general. The attorney general’s job is to defend the laws passed by the Texas legislature. One of those laws was a law restricting the sale of sex toys, which is a stupid law. Consenting adults should be able to do whatever they want in their bedrooms.
Which was the correct answer. If we are to have a legal system that allows people, institutions, and governments to defend themselves against charges of illegal conduct — and we should have that system — then we are going to have lawyers who defend their clients to the best of their ability. It doesn’t matter whether the defendant is popular, whether the institution is sympathetic, or whether the law is a good one — none of that is the point. The point is that an adversarial legal system requires advocates who will relentlessly press their case, and, in so doing, force the other side to prove its brief to a high standard. There is nothing wrong with people who are willing to become solicitor generals and defend laws they dislike, or with people willing to become corporate lawyers and defend companies they disdain, or with people who are willing to become public defenders and defend clients they suspect are guilty, and to suggest otherwise betrays an unthinking and opportunistic illiberalism.
For some reason, Ted Cruz seems to believe that the very act of becoming a public defender indelibly marks a person as being intrinsically favorable toward accused criminals, but that Ted Cruz’s having chosen to be a lawyer for the government for half a decade did not indelibly mark him as a statist.
Funny, that.