I now have a piece on CNN.com explaining that Ted Cruz should recuse himself from Senate Judiciary Committee hearings on President Obama's eventual nominee to the Supreme Court.
Here is the gist of his conflict of interest:
Cruz's claim to "natural born" United States citizenship has been questioned (bombastically) by Donald Trump, and (very seriously) by a number of highly respected legal scholars, including Harvard's Lawrence Tribe and the University of Chicago's Eric Posner.
It is far from a given that Cruz is constitutionally qualified to be president, and his status, if nominated, is sure to be challenged in court.
Such a case would ultimately reach the U.S. Supreme Court, which gives Cruz a unique stake in filling the current vacancy. If Cruz were to remain an active member of the Judiciary Committee, he would actually have a chance to interrogate — and to vote upon — his own potential judge.
You can read the whole essay here.
Steve, why couldn't it just work the other way? Cruz votes in the Senate Judiciary Committee (and in the full Senate vote, if there is one), and then the new Associate Justice, if confirmed, recuses him/herself from any case challenging Cruz's qualifications to sit as President that comes before the Court (on the theory that having been questioned by Cruz in the Judiciary Committee creates the appearance of unfairness, yadda yadda yadda)?
Good question, Eric, but who would make the recusal motion? Cruz could not move to disqualify a judge based on his own conduct (there is lots of law on that), and the anti-Cruz litigants would want to.
The great irony would be the invocation of Scalia's non-recusal opinion in Cheney v. District Court.
Ahhhhhh, deliciously evil…..
The anti-Cruz litigants would "not" want to. Sorry about the slip.
Who knew?
Lubet is a birther!
And, apparently taking his cue from whatever Democratic talking point he happens upon, now he is spinning theories to the public about senators having a duty not to vote on any nominee to the supreme court that might rule on a matter affecting the qualification for office of candidates for the presidency.
Right. A senator must not serve on the Senate Judiciary Committee considering a nominee to the Supreme Court, unless the senator can guarantee that the senator has never been affected by, nor ever will be affected by, a ruling by the SCOTUS that might affect interpretation of the Constitution relevant to a candidate's qualifications to be president.
Citation? Lubet has none. So, he resorts to a different code, for judges, far removed from the topic he so confidently addresses and completely irrelevant.
Shoddy analysis.
One of my pov particularly relished the distance CNN took from the blog post.
Cruz? Who is this Cruz fellow? Isn't that a Chevrolet?
anon's self-righteous victimization continues. Senator Rafael, aka Ted, Cruz was born in Calgary, Canada. Canada is a different country. President Obama was born in Hawaii, which is in the United States. You're smart enough to know the difference anon (as opposed to all those people who like to dress up in tri-pointed hats, complain about people's English speaking, and whine about the government coming after their Medicare, while the rest of us are at work!!).
Cent. The issue is "natural born" … born on the soil is only one arguable element of the analysis, born a citizen is another, more complex question. Not that substance would matter to Lubet. He is just a shill, trying to tie the latest Democratic talking point of the day to some legal issue, and ignoring all the faults inherent on his "team."
And, btw, the "Ted" comes from the middle name, Edward, ala "Ted" Kennedy, not the "Rafael" part. Not that a Democrat wouldn't be all over your comment for that mistake (choosing the Spanish sounding name), of course.
Cruz delayed my family's tax refund by one month because of his antics that shut down the government. He brought us to the fiscal cliff several times. He maybe a citizen, but does not love his country or care about its interests. Isn't that what is really going on here? I think he is a traitor.
How can a Senator be required to recuse because of a hypothetical legal case that hasn't even been filed? By that standard, shouldn't evert Senator be recused? For that matter, why isn't the President recused from making the nomination, given that the Justice if confirmed will be voting in many cases involving the President?
Orin
How about nominating a person who worked on one's signature legislation, expecting her to then vote to uphold it?
NO problem for Lubet. He doesn't care what his "team" may do.
For example, from Politico, July 7, 2007: "New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
One tires of the pretense and thin scholarly patina put on the truly ideological and partisan bunk propounded by Lubet.
He seems to have no sense that he is condemning others for actions that he has either expressly or impliedly supported in the past, based solely on party label.
What a shame.
Orin: Perhaps Cruz cannot be required to be recused, but he should nonetheless step aside to be replaced by another Republican. As to recusing Obama:
First: Every president has policies that will come before the Court, yet they all make judicial appointments. Only one senator is currently facing the prospect of having his presidential eligibility decided by the Court.
Second: We have only one president at a time, in whom the power of judicial appointment is vested by the Constitution. There are currently 54 Republican senators, any one of whom can fulfill the "advice and consent" function by serving on Senate Judiciary.
Third: The American people elected President Obama (twice) with full knowledge that he would make nominations to the U.S. Supreme Court. Ted Cruz was named to Senate Judiciary by Mitch McConnell.
Finally: Bob Dole resigned as majority leader (and from the Senate as well, though that is not relevant) when it appeared that he could not both lead the Senate and campaign for president.
I think it is quite reasonable for Cruz to yield his seat on the committee for a single hearing.
If only there were a blog where intellectual honesty has (almost always) trumped partisanship.
@anon. Please show us where Lubet endorses the very idea that Cruz is not qualified for the presidency on birther grounds. Thank you. Close readings are always so helpful.
Jeff: Lubet says " I have no firm opinion on whether Ted Cruz is a natural born citizen and thus eligible to be elected president" but his piece drips with innuendo and suggestions and citation, for example, to Tribe, who served in the current Justice Department. (Does that disqualify Tribe?)
Lubet's style requires a thin veneer of varnish, presumably to link his partisanship to some sort of academic authority, but through which the rank partisanship always shows through.
I don't advocate that he stop. We all know there is plenty of space for this sort of thing in today's dysfunctional and hate filled political culture (and Lubet can feed it all he wants). But, in the FL, I would think that Lee Atwater style tactics would be discouraged.
One wishes that Lubet could appreciate the true nature of the forest. He only attacks one kind of tree. He doesn't seem to see the roots and the trunk and the leaves on the trees he attacks, which vary in nature and quality and benefits and detriments, because he labels the trees and then closes his mind and seeks to cut down all of the kind of tree he considers evil (50% of the forest, it turns out!). He ignores the trees he thinks are perfect, and can't see that those trees too vary in nature and quality and benefits and detriments. We need the forest, Steve.
What is so terribly sad is that Lubet could probably do better. He doesn't seem to ever do much more than scratch the surface: his posts always seem to deal with some frivolous Democratic talking point of the day, and rarely get underneath to look at structural issues, political theory, etc. One senses he doesn't really know much or care much about the deeper import of political trends and theories.
That is a shame. The FL could be a better place if that sort of analysis became its hallmark, instead of this constant stream of MSNBC style drivel.
"Only one senator is currently facing the prospect of having his presidential eligibility decided by the Court."
Is it a meaningful prospect? With no lawsuit filed?
Ah, the ever gutless "anon"–hiding behind the cloak of anonymity to once again attack Professor Lubet for partisanship. Lubet posts, on cue, "anon" attacks. The coward's tired vendetta continues.
Doug
Please direct your repetitive attack to those who govern this website. They permit anonymous comments, as you can see above.
Please also remember that you are attacking all of your colleagues who also post here anonymously, unless you believe that only Lubet deserves your special form of protection, and unless you believe that anonymous comments that SUPPORT him are just fine.
Third, it is Lubet that is on the constant partisan attack on others. By mirroring this, in the vulgar terms you do, you discredit him.
Finally, I personally think it is a fault to attack a person but refuse to address the merits. (If you believe there to be no merit, say so, but anonymity doesn't establish the point either way.) One suspects, for example, that you would have attacked the Federalist papers on the grounds that you couldn't personally identify and personally attack the authors. Scary. Spooky.
I would defend any other blogger who was subject to the same sort of serial attacks that "anon" makes on Prof. Lubet. The argument that by criticizing the "anon" who stalks Prof. Lubet on this site I am attacking everyone who posts anonymously is just plain silly. There is nothing "scary" or "spooky" about my position. Both of those words, however, accurately describe "anon"'s behavior on this site.
Doug
YOu are missing the point. Does Lubet deserve your opprobrium because of his writing on Alice Goffman? Is he "stalking" her in your intemperate lexicon?
It is no answer to say that he does this in his own name, because you do not now, apparently, claim that anyone who posts anonymously is a "gutless coward."
Now, it appears that your diatribe against "anon" is based only on the fact that you think that Lubet has been unfairly criticized by "anon." But, you have identified not a single reason to claim the criticism is unjustified. It may be. If so, say so.
(Your comments have been just venting and ranting about posting anonymously, but now, you appear to have abandoned that reason for your vulgar retorts, and apparently now claim that it is just wrong to challenge Lubet's series of posts on the grounds that he is inappropriately using the FL as a MSNBC-like outlet for a political campaign.)
Your intemperate comments are thus sort of confused and risible, frankly. You obviously are very angry that one of very few on this site happens to be challenging a series of posts that uniformly attack Republican candidates, on often sort of frivolous grounds, e.g., the post above.
We can only conclude that you believe that Lubet should continue his campaign here in the FL to ridicule and embarrass Republican candidates, while ignoring candidates from the other party and while completely ignoring the deeper, systemic issues that are plaguing our political system (e.g., the anger exemplified by your reaction to any challenge to ridicule of Republicans). For one, I do not agree, and do not believe that Lubet is so fragile that he needs you to foment on his behalf.
But, you, like everyone else, may comment here until the powers that be adopt a different policy.