In September, I made the decision, and my team began negotiating with the Trump team for me to officially endorse him. The price of my endorsement was explicit: I wanted a clear, unequivocal commitment that he would nominate Scalia’s replacement from a specified list, and only from that list. And I wanted Senator Mike Lee added to that list. The campaign agreed to both conditions. On September 23, 2016, the Trump campaign put out a revised list, adding ten more names, taking it from eleven to twenty-one; among those new names was Mike Lee.
Then-candidate Trump explicitly committed in writing that Scalia’s replacement would come only from that list, that nobody else would be considered. For me, after dropping out of a hard-fought presidential race, securing a conservative jurist to replace the great Scalia was paramount.
We were closely coordinating with the Trump campaign, and within minutes of their announcement, I put out my endorsement in a lengthy Facebook post that I had written explaining why I believed conservatives should support Donald Trump. Judicial nominations were the number-one reason. Here’s what I wrote that day:
First, and most important, the Supreme Court. For anyone concerned about the Bill of Rights—free speech, religious liberty, the Second Amendment—the Court hangs in the balance. I have spent my professional career fighting before the Court to defend the Constitution. We are only one Justice away from losing our most basic rights, and the next President will appoint as many as four new Justices. We know, without a doubt, that every Clinton appointee would be a left-wing ideologue. Trump, in contrast, has promised to appoint justices “in the mold of Scalia.”
For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees—including Senator Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list. This commitment matters, and it provides a serious reason for voters to choose to support Trump.
Over the next two months, I campaigned for Trump, and I energetically urged conservatives to come out and support him. And they did, in record numbers.
The week after the November election, I flew to New York, went to Trump Tower, and met with the president-elect and his team. I spent four and a half hours with them that day and had dinner with his team that evening.
I told him, “Mr. President, we’ve been given an historic opportunity. This happens very, very rarely: unified control of the House, the Senate, and the presidency. We can’t waste it. I want to do everything humanly possible to lead the fight in the Senate for us to actually deliver on the promises we made.”
The conversation then shifted to whether I would consider a job in the administration. The president asked if I would be interested in secretary of Homeland Security. Although I care deeply about securing the border, I said no. I thought I could have significantly more impact in the Senate.
I told him the one job I might consider was attorney general. Frankly, I made what I’d characterize as a half-hearted play for the position. I said, “Mr. President, there are a lot of people who were on board way before I was. And so if Sessions or Giuliani or Christie want it, it should probably go to them. But if you wanted me as AG, I’d be willing to discuss it.” We did discuss it for some time, but it seemed clear to me even then that he wanted Jeff Sessions in that slot, which was his prerogative. Sessions is a good man, but, unfortunately, we saw over the next two years that he was not at all prepared for the job of attorney general.
Instead, Trump pressed me in a different direction. He asked if I was interested in the Supreme Court vacancy. I paused for a second, and then said no. I told him I didn’t want it. He pressed me further on the matter, as did his senior team that afternoon. But I told them flat no, I didn’t want to be on the Court.
That may seem surprising to some folks. But it was not the first time I had passed on the judiciary. When I was Texas solicitor general a decade earlier, the Bush administration had inquired if I was interested in the Fifth Circuit Federal Court of Appeals. I told them I was flattered by the interest, but I didn’t want to be a judge.
Though I hold judges in the highest esteem, there’s a simple reason why I don’t want to be a judge: principled judges stay out of policy and political fights. If I were ever a judge, that’s exactly what I’d do; I would follow the law, no matter what.
But I don’t want to stay out of policy and political fights. I want to lead them. I want to fight for lower taxes and regulations, for more jobs, for economic growth, for individual liberty, for a strong national defense. And, in our constitutional system, the Senate is the right place to do that. I care deeply about having principled judges on the bench—and I want to be part of nominating and confirming hundreds of them hopefully for many years to come—but I don’t particularly want to be one of them.
Nevertheless, when I returned home to Texas after visiting Trump Tower, the discussion weighed heavily on me. I don’t want to overstate matters; Trump didn’t offer me a seat on the Court. But he and his team made it clear that it was a real possibility. And, politically, you could see why they considered it. At a time when there was still significant perceived tension between us, having me safely ensconced and permanently silenced in a lifetime judicial appointment no doubt appealed to the Trump team. If things between the incoming administration and the Senate fell apart, I would be sidelined
