The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.
Brooks Borks Cruz
Yesterday we had a mischievous thought: What if Donald Trump, on the eve of the Iowa caucuses, were to announce (or merely suggest) that if elected, he would nominate Ted Cruz to the next vacancy on the U.S. Supreme Court? Such a move would give some Cruz supporters a reason to switch while reassuring other conservatives nervous about the soundness of a President Trump’s judicial nominees.
Trump could even use the occasion to reinforce his current Cruz-directed mischief. After all, nobody can claim that Cruz’s Canadian birth would pose an obstacle to a Supreme Court appointment. Several early justices were born in England and vicinity; Justice Felix Frankfurter was a naturalized immigrant from Vienna; and Justice David Brewer was born as far away as Turkey.
Is David Brooks thinking along similar lines? We ask because his New York Timescolumn today looks an awful lot like a pre-emptive borking.
For our younger readers, the transitive verb “to bork” is an eponym from the late Robert Bork, whom Ronald Reagan unsuccessfully nominated to the high court in 1987. Political lexicographer William Safire defined it as to “attack viciously a candidate or appointee, especially by misrepresentation in the media.”
In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.
Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.
Some justices were skeptical. “Is there some rule that you can’t confess error in your state?” Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.
The case reveals something interesting about Cruz’s character.
That something would be what Brooks’s headline calls “The Brutalism of Ted Cruz.” Brutalism is a style of architecture, but Brooks means to repurpose the term as an ideological slur—and a religious one.
“In his career and public presentation Cruz is a stranger to most of what would generally be considered the Christian virtues,” Brooks writes. “Cruz’s speeches are marked by what you might call pagan brutalism. There is not a hint of compassion, gentleness and mercy.”
That line of attack is redolent of the late Sen. Howell Heflin, an Alabama Democrat who—as George Will noted the following year—said he opposed Bork in part, as the senator put it, he was “disturbed by his [Bork’s] refusal to discuss his belief in God—or the lack thereof.”
Brooks’s borking of Cruz leans heavily on Dretke v. Haley, the 2004 case he describes in the above-quoted passage. We haven’t read the whole decision, only the high court’s two-paragraph syllabus. That turned out to be enough.
The tell—what led us to think Brooks probably wasn’t shooting straight here—is his unexplained segue from the skepticism of “some justices,” including Kennedy, to Haley’s release thanks to “the court system.” We inferred that Cruz had won the case, and we inferred correctly. The vote was 6-3, with Kennedy among the dissenters. The majority opinion was written by Justice Sandra Day O’Connor and joined by, among others, Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.
If arguing against Haley’s legal position “reveals something interesting about Cruz’s character,” what does deciding against it reveal about the character of O’Connor, Ginsburg, Breyer and the others in the majority? Don’t worry, there won’t be a test. The answer is nada; the question is rhetorical and demonstrates the falsity of Brooks’s premise.
That is not the limit of Brooks’s deception, which begins in the very first paragraph with the assertion that “prosecutors incorrectly applied a habitual offender law.” We naturally read that to mean Haley was doing time for a crime he didn’t commit—that he was harshly sentenced under a “three strikes” law but had been convicted for only one or two prior felonies.
In fact, Haley did have the requisite two prior felony convictions. From the syllabus: “As it turned out, the evidence presented at the penalty phase showed that respondent [Haley] had committed his second offense three days before his first conviction became final, meaning that he was not eligible for the habitual offender enhancement.”
Thus the error here was procedural, not substantive: Haley had been duly convicted of three felonies, but because of an accident of timing, the second one should not have counted under Texas law. He was, in other words, trying to get off on a technicality.
That is not to say he should not have. The law is the law, and there was no dispute that Texas officials erred. They too were pleading a technicality: “that respondent had procedurally defaulted his sufficiency of the evidence claim.” The question before the court was whether “the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders.”
This columnist does not have a firm opinion as to whether three-strikes laws are prudent or just (a policy question), much less on the legal question whether the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders. (A layman’s simplification of the court’s answer to the latter question: Maybe, but not in this case.)
Cruz’s successful appeal in Haley tells us nothing about him except that he was a competent solicitor general. His job was to make legal arguments, not moral judgments about crime and punishment or personal ones about particular criminal defendants. If Brooks thinks Haley’s punishment was unjust—and there is nothing to suggest he has an informed view of the matter at all—he can fault the legislators who passed the three-strikes law, the prosecutors who applied (and misapplied) it, and the trial judge who imposed the sentence.
Brooks means to denounce Cruz, not to vindicate Haley. Criticizing politicians, even denouncing them, is part of the job of an opinion columnist. But Brooks’s treatment of this case is either deliberately deceptive or recklessly ignorant. It may raise questions of character, but not Ted Cruz’s.
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