David Brooks’s column today is an indicator of just how much the GOP establishment loathes the idea of Ted Cruz as president, even though there’s now a good chance that Cruz will end up being the only realistic alternative to the Donald. The piece is basically a hack job, that mischaracterizes an obscure and procedurally complex SCOTUS case in order to make a purported point about Cruz’s “character.”
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. Ted Cruz is now running strongly among evangelical voters, especially in Iowa. But in his career and public presentation Cruz is a stranger to most of what would generally be considered the Christian virtues: humility, mercy, compassion and grace. Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism: an overzealous application of the letter of the law in a way that violates the spirit of the law, as well as fairness and mercy.
Dretke v. Haley is a lot more complicated than Brooks’s description of it. The real injustice in the case wasn’t the Supreme Court’s refusal extend the actual innocence exception to non-capital habeas claims. Haley’s “actual innocence” was actual in only the narrowest technical sense; he was a habitual offender but his second conviction wasn’t finalized until a few days after his third. (It’s also worth noting that Breyer and Ginsburg were part of the 6-3 majority). The real injustice here is the underlying habitual offender statute, which allows Texas and the many other states with similar laws to sentence people to extraordinarily long prison terms for essentially petty crimes, and whose legality was never in question.
Furthermore, it wasn’t Cruz’s job to decide whether or not to appeal the case to the SCOTUS, since that decision would be ultimately in the hands of Texas’s AG — Greg Abbott at the time, now the governor. Now there’s no reason to think Cruz objected to the decision to appeal the case to the SCOTUS, but framing it as his decision, as Brooks does, is disingenuous.
What’s interesting about all this is that we can pretty safely assume that Brooks is carrying water for the GOP establishment (I’m pretty sure this obscure 12-year-old case didn’t pop up for Brooks during some random internet surfing). And the latest poll numbers indicate that Trump appears to have a real shot in Iowa, which, if he were to win, would be a serious blow to Cruz’s campaign, since if Cruz can’t beat Trump in Iowa it’s hard to imagine him beating him in enough places elsewhere.
This suggests that, to some of the powers that be at least, Trump is actually preferable to Cruz.