To see Cruz execute his signature maneuver, rewatch last month’s CNBC debate in Boulder, Colo. At one point, moderator Carl Quintanilla asks Cruz whether his opposition to the recent bipartisan budget deal shows that he is “not the kind of problem solver American voters want.” In response, Cruz doesn’t just decline to answer; instead he transforms Quintanilla’s rather docile question into damning proof of the mainstream media’s alleged bias against Republicans.
“The questions that have been asked so far in this debate illustrate why the American people don’t trust the media,” Cruz thunders. “This is not a cage match. And you look at the questions: ‘Donald Trump, are you a comic book villain?’ ‘Ben Carson, can you do math?’ ‘John Kasich, will you insult two people over here?’ ‘Marco Rubio, why don’t you resign?’ ‘Jeb Bush, why have your numbers fallen?’ How about talking about the substantive issues people care about?”
The audience roars. According to Frank Luntz, who has been focus-grouping presidential debates for more than 15 years, Cruz’s response received a 98 out of 100, the most favorable rating ever recorded.
Yet on second viewing, what’s striking about Cruz’s pivot is how premeditated it sounds. Cruz’s tell is the way he was able to rattle off, with remarkable accuracy, the most unflattering questions his rivals had already been asked. It seems clear that Cruz arrived in Boulder planning to spend the first part of the debate making a mental list of every “biased” query for later use. By the time Quintanilla got around to him, he was ready to strike.
Cruz continued to strategize at Harvard Law. His byline — or, rather, bylines — were telling. When he wrote for the Harvard Latino Law Review, a journal that he co-founded, Cruz signed his articles “Rafael E. Cruz.” Elsewhere, such as in the conservative Harvard Journal of Law and Public Policy, “R. Ted Cruz” was his moniker of choice. Conversations with Cruz’s fellow law students, especially those who served with him on the prestigious Harvard Law Review, suggest that Cruz wasn’t always the most reliable contributor; he was widely seen as being too busy volunteering as a research assistant for various influential professors – the kind who could later write him recommendation letters – to bother with less urgent matters.
Cruz’s main objective in Cambridge was clear: He wanted to win a clerkship with Supreme Court Chief Justice William Rehnquist. (“From day one,” his study partner has recalled, “that was his tangible, near-term goal.&rdquo
Everyone knew that Rehnquist, a devoted tennis player, preferred to hire clerks who knew their way around the court. But Cruz had barely ever picked up a racket.
“Would you be willing to play tennis with me and my other clerks?” Rehnquist asked Cruz when they met for a job interview.
“I should tell you I’m not very good,” Cruz claims to have replied.
What Cruz doesn’t mention — and what several classmates remember him being “very open” about at the time — is that he had already described himself as a tennis player on his application for the clerkship.
Either way, Cruz got the job. To prepare, he spent the next several months cramming with a tennis coach. But the lessons didn’t seem to help: Cruz still bombed in his first doubles match with Rehnquist, whose team won in straight sets — 6-0, 6-0, 6-0.
In 1998, Cruz moved on to a boutique Washington, D.C., firm then known as Cooper & Carvin; he was the first associate hired. “Ted had a golden résumé,” says Mike Carvin today. (Carvin, who has been called “the hard right’s best advocate,” is the lawyer who earlier this year argued against Obamacare before the Supreme Court in King v. Burwell.) “We figured he would be a very good candidate to succeed in private practice as well.” Cruz’s plotting had paid off yet again.
From the beginning, Cruz proved particularly adept at the kind of law that he would go on to practice for the next decade: appellate litigation. This is key to understanding Cruz. As legal journalist Jeffrey Toobin wrote last year in the New Yorker, “Trial lawyers, civil or criminal, are often brought into cases when there are compromises to be made; much of their work winds up involving settlements or plea bargains. But appellate litigators, like Cruz, generally appear after the time for truce has passed. Their job is to make their best case and let the chips fall where they may.”
For Toobin, Cruz’s specific brand of legal expertise explains “the kind of politician Cruz has become — one who came to Washington not to make a deal but to make a point.”
That’s undoubtedly true. But there’s another difference between trial lawyers and appellate litigators that’s just as important in explaining Cruz. Trial lawyers argue over facts: Was the traffic light green or red? Appellate litigators, meanwhile, argue over the law itself — what it says, what it means, how it applies to the case at hand. To be a good appellate lawyer — and Cruz, according to James Ho, his successor as Texas solicitor general, is “easily the best appellate lawyer in the state of Texas and truly one of the best appellate lawyers in the nation” — knowing the rules very, very well is essential. But you also have to know how to make them work in your favor.
At Cooper & Carvin, the biggest test of Cruz’s burgeoning talent for appellate law was a case involving two sitting U.S. congressmen: Boehner v. McDermott. A Florida couple had used a police scanner to eavesdrop on Rep. John Boehner of Ohio discussing House Speaker Newt Gingrich’s ongoing ethics troubles during a conference call with Gingrich and other Republican leaders. The couple then gave an audiotape of the call to Democratic Rep. John McDermott, chair of the committee investigating Gingrich, and he, in turn, gave it to various newspapers. Boehner sued. Initially, a district court ruled that McDermott had not broken the law, arguing that even though someone else had recorded the call illegally, McDermott— the middleman — was protected by the free speech clause of the First Amendment because the conversation on the tape was a matter of public concern.
Boehner appealed, and that’s where the 28-year-old Cruz came in. As “the key architect of our legal strategy,” according to Carvin, Cruz reframed the whole debate, urging his bosses to question whether leaking a tape to a newspaper even qualified as speech in the first place. This time, the court sided with Boehner. According to its ruling, McDermott had merely “caused a copy of the tape” to be given to the press — meaning that while his behavior may have conveyed a message, it was essentially conduct and therefore not protected by the First Amendment.
As effective as Cruz was at Cooper & Carvin, however, his superiors could already sense that he was mulling his next move. “It was clear,” Cooper says. “He was very animated about public policy. He was very interested in politics himself. But the thing that was unusual about Ted wasn’t his interest. It was his real potential talent as a politician.”
More than a decade before he would run for office himself, Cruz joined George W. Bush’s presidential campaign as a domestic policy adviser. When the election devolved into a chaotic clash over Florida’s hanging chads, Cruz, who has described himself as “the only practicing constitutional litigator” on staff, was tapped to facilitate communication and maintain consistency across all seven of Bush’s legal teams. Again Cruz was put in a key strategic position — and again he excelled. “It was incredibly fast-paced and very difficult,” says Carvin, who, recruited by his former employee, wound up representing Bush before the Florida Supreme Court. “And Ted was always analyzing the various challenges in a very sophisticated, savvy way.”
Yet Cruz’s savviness had its limits. His strategic thinking may have been helpful to Bush in court, but after hours, Cruz couldn’t seem to turn it off. According to a report in GQ, Cruz so frequently sent “mundane work emails in the middle of the night” that his colleagues began to suspect him of “writing them ahead of time and programming his computer to send while he was asleep” in order to look like he’d been working around the clock. He would also issue regular updates on his accomplishments that one recipient likened to “the cards people send about their families at Christmas, except Ted’s were only about him and were more frequent.” After the election, many of Cruz’s campaign colleagues were rewarded with plum White House jobs, and Cruz was expecting the same. But once again his machinations had rubbed too many people the wrong way. He was exiled to the Justice Department and later the Federal Trade Commission instead.
It wasn’t long, however, before Cruz would get another chance to put his strategic skills to use. Down in Texas, newly elected Attorney General Greg Abbott had resolved to build the most aggressive AG operation in the country — and in Cruz, whom he appointed solicitor general in 2002, Abbott found the perfect lieutenant. The pair scoured the country for fights brewing between the states and Washington, D.C., then inserted Texas into the proceedings whenever possible. In doing so, Cruz and Abbott were practicing a time-honored tradition; AGs have long targeted cases that can help them advance their own philosophical and electoral interests. Cruz and Abbott were just being particularly bold about it.