Cruz didn't elaborate upon the prediction — and his office didn't add much when contacted by The Post's Sean Sullivan — but it was apparent that he was referring to a vacancy separate from the current one. He suggested that the new vacancy could actually impact that balance of the court — in contrast to the “defense” Republicans are playing by replacing the late conservative Justice Antonin Scalia with Gorsuch.
A few theories as to where this is coming from:
1) He is somehow aware that a nonconservative justice will vacate
The court's older justices aren't on its conservative flank — liberal Ruth Bader Ginsburg is 83, swing-vote Anthony M. Kennedy is 80 and liberal Stephen G. Breyer is 78 — so if there is another vacancy, it stands to reason it would be one of these justices.
But would they really tip off Cruz — much less anybody else — about their plans? That seems unlikely. And even if they told other justices, would those justices inform Cruz specifically of their colleagues' plans?
Even if Cruz did have this information, it seems weird that he would telegraph it. If we do wind up having a summer court vacancy, Cruz may face questions about how he was aware of something so sensitive.
2) He knows nothing, but is trying to warn Democrats off filibustering Gorsuch
Perhaps the most compelling argument against Democrats launching an unprecedented Supreme Court nominee filibuster of Gorsuch is the idea that Republicans will simply change the rules to get rid of the filibuster for Supreme Court nominees — just as then-Majority Leader Harry M. Reid (D-Nev.) did for all other nominations a few years back.
And given, as Cruz notes, that the next vacancy could actually shift the balance of the court — unlike the Scalia/Gorsuch switch — that's a very real concern. Why would Democrats give away the game against Gorsuch only to have it really come back to bite them when it matters — with the next vacancy?
But warning Democrats off filibustering Gorsuch could actually backfire. It would seem to be easier for Republicans to get rid of the filibuster on the Gorsuch nomination — in which the balance of the court isn't at stake and given how broadly respected (i.e., more difficult to fight) Gorsuch seems to be — than on a future nomination, when it might look more political.
3) It was just a wild prediction
Perhaps Cruz was just spitballing. That seems out of character for him, yes, but maybe he just made a wild prediction based on nothing more than his own intuition and logical deduction.
And it is a somewhat logical prediction. Perhaps he thinks one of the older justices knows they won't be able to stick it out for four years until after the 2020 election — when a Democrat could regain the presidency — and they might as well retire this year. And maybe they'll simply be waiting until after Gorsuch is confirmed so that there won't be two vacancies at once.
This seems like the most likely scenario. But who knows?