Trump Says He Would Nominate Ted Cruz to Supreme Court if a Seat Opens. No Vacancy Exists, and Cruz Has Said No

President Donald Trump said Tuesday, Oct. 27, that Sen. Ted Cruz of Texas would be his choice for the next Supreme Court vacancy. He delivered the line at a midterm rally in Lubbock for Texas Republican Senate nominee Ken Paxton.

There is no vacancy to fill. No sitting justice has announced a retirement.

What Trump said

Trump started with the difficulty of confirming justices. "I picked three Supreme Court justices, and it's very hard to get them approved," he told the crowd, referring to Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Then he pitched Cruz as the fix. "I said, 'Look, I have an answer to it. Ted is a brilliant guy, brilliant lawyer, brilliant all that.'"

The confirmation math came next. "The Democrats will 100% vote for it because they hate the guy and they want to get rid of him," Trump said. "And the Republicans would 100% vote for it because they can't stand him, they would like to get rid of him. So I'd get 100% of the vote, and he would be a Supreme Court justice, and he'd do a great job."

Cruz sat in the front row and laughed along.

Cruz keeps saying no

The bit is a recurring one. Trump made a similar joke in July at a White House event promoting Trump Accounts, and he has floated Cruz's name for the Court on several occasions in recent years. Cruz was also on the list of possible nominees Trump released during his 2020 campaign.

Cruz's answer has not changed. At an April Wall Street Journal "Opinion Live" event, he said: "In the first Trump term, the president spoke to me seriously about all three vacancies, and three times I said no, because I don't want to be out of the arena of the political battle."

In September he told the Houston Chronicle, "I don't want to be a judge." In interviews earlier this year, he described his answer as "not just no, but hell no."

Cruz, 55, is a third-term senator and a Harvard Law graduate. He clerked for Chief Justice William Rehnquist and served as Texas solicitor general from 2008 to 2013. He has argued nine cases before the Supreme Court. He has also expressed interest in running for president in 2028.

Where the Court stands

Trump's three first-term appointees gave the Court its conservative majority. USA Today reported that Trump has expressed regret about all three after they ruled against his administration in several high-profile cases.

Whether he gets a fourth pick is an open question. Justice Samuel Alito, 76, said in August that he plans to stay on the bench through at least the next session, according to USA Today. In June, NPR's Nina Totenberg reported that Alito was retiring. She quickly retracted the story, saying she had "misheard" something about a retirement announcement.

The Texas backdrop

The rally was Trump's second Texas stop of the day. He had earlier appeared in Corpus Christi. In Lubbock, Democratic Senate nominee James Talarico held a separate event nearby while early voting continues ahead of the Nov. 3 midterms.

Paxton, the state's attorney general, is the Republican nominee for the seat Sen. John Cornyn will leave in January.

What is still unsettled

Trump's remark was framed as a joke about Cruz's relationships in the Senate, and it was also an on-the-record statement of whom he says he would pick. Cruz, who has turned down the job three times by his own account, has not said anything to suggest he would take it now.

Any confirmation fight would run through the Senate that emerges from the Nov. 3 elections. Trump's claim of unanimous support remains a prediction that no vote has tested.