Cruz control
Wed June 20, 2012 1:36 pm

The Dewhurst campaign has found some new ammunition it may be able to use against Ted Cruz. It involves a U.S. Supreme Court case in 2008 in which Justice Anthony Kennedy did not know the law. Neither, so it appears, did  Cruz.

A week earlier, in the case of Kennedy v. Louisiana, the Court had ruled that the death penalty for raping a child was unconstitutional. From the New York Times story about the ruling, by the newspaper’s  Supreme Court reporter, Linda Greenhouse:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states–not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog had pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

So the Supreme Court had erred: The majority had stated that a child rapist could face the death penalty in only six states–not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government. But the changes in the Uniform Code of Military Justice were, of course, under the jurisdiction of the federal government.

Why did this matter? Because, Ms. Greenhouse wrote:

This inventory of jurisdictions was a central part of the Court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

This is where Ted Cruz comes in. He argued the case in support of Louisiana on behalf of a coalition of ten states. In preparing for the case, he told Ms. Greenhouse, the existence of the military provision “simply eluded everyone’s research.”

Now, here is the political context:

The Texas Legislature had passed Jessica’s Law, which imposes the death penalty on certain child rapists. Dewhurst was a major driver of the legislation. Several states joined Texas in calling for justice in cases involving the rape of a child.

It was Cruz’s job to defend the law before the Supreme Court, but (as the Dewhurst camp will claim),  Cruz failed to do sufficient research surrounding the death penalty, with the result that Jessica’s Law did not contribute to the determination of “evolving standards of decency” in child rape cases.

Cruz’s oversight became the basis of an unsuccessful effort to get the Supreme Court to rehear the case. The request for rehearing noted that the oversight was a “significant error.”

From the Dewhurst camp’s point of view, Cruz’s “significant error” caused the Texas law to be defeated, and tougher penalties for child rapists did not occur.

Is Cruz’s failure to research the changes to the Uniform Code of Military Justice sufficient to become the basis for an attack ad? We won’t know the answer until we see the ad. The argument will be that if Cruz had done the proper research and found the change to the Uniform Code of Military Justice, the majority might have changed its notion of an evolving standard of decency and taken a tougher view of how child rape should be penalized.

In an earlier post, I raised the question of whether the Dewhurst camp had any more bombs to throw at Cruz. This could be one. If you agree with the Dewhurst campaign’s view of the incident, due to mistakes made by Cruz, the death penalty for child predators was ruled unconstitutional.  Cruz had failed to research federal legislation that made child rape a capital offense in the UCMJ – legislation that would have helped the case, since the Supreme Court made their ruling under the impression that there was no federal statute authorizing the death penalty for child rapists, when there was one.

As the Dewhurst campaign will try to portray this incident, internal e-mails from the attorney general’s office will show that Cruz had not done the proper research on this case.  Writing to another attorney about the mistake, Cruz said, “Wow, this seems pretty significant.  Is it right?  Did we ever uncover it?”  And he later wrote, “I need to call Greenhouse back this morning.  She may well write this in the NY Times that the OSG [Office of the Solicitor General] screwed up by not finding it – would love to have some sort of response, so we don’t look silly.”

Ultimately, if the ad reaches the production stage, Dewhurst’s argument will be that Cruz’s research resulted in the Supreme Court’s not imposing stricter punishment for child rape.

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