With the death of Supreme Court Justice Antonin Scalia, the likelihood that the next president will immediately appoint a replacement will excite the already energized base of both the Democratic and Republican parties, a prospect that in the GOP race could benefit the most obviously ideological candidate, Sen. Ted Cruz.
Senate Majority Leader Mitch McConnell on Saturday said the vacancy “should not be filled until we have a new president.” Other leading Republicans echoed that there will be no vote this year, even though President Obama said he will nominate someone. But if the Senate will not give its advice and consent, the appointment is punted to the next president — and onto the campaign trail.
Given that the Ronald Reagan-selected Scalia is the the intellectual backbone of the Court’s conservative wing, his successor could be the most important judicial nomination made by a Republican president — should that be who is in the White House next year — in decades.
Cruz will be counting on conservatives to believe he will not only to choose an unimpeachably conservative jurist, but, given his history of facing down the Senate, will implacably press for confirmation. During Saturday night’s GOP debate Greenville, South Carolina, Cruz began making the argument.
“And then for the state of South Carolina, one of the most important judgments for the men and women of South Carolina to make is who on this stage has the background, the principle, the character, the judgment, and the strength of resolve to nominate and confirm principled constitutionalists to the court?” he said. Who indeed? “That will be what I will do if I’m elected president,” Cruz asserted.
But whom this might help on the Democratic side is less clear. While Sen. Bernie Sanders is the more ideological candidate, for many Democrats, the Supreme Court evokes a single thought — abortion — and nobody bests Hillary Clinton on that issue. And having the Court so obviously at stake will certainly help Clinton should she be the Democratic nominee, getting lefties to the polls who otherwise might have sat home pining for Bernie.
The entrance of the Court into the campaign could become something of an Achilles Heel for Donald Trump. During Saturday night’s debate, Cruz demonstrated he plans to embrace the opportunity.
“The next president is going to appoint, one, two, three, four Supreme Court Justices,” Cruz said. “If Donald Trump is president, he will appoint liberals.”
Cruz and other Republican candidates are certain to pounce on Trump’s recent assertion last year that his sister, U.S. Court of Appeals Judge Marion Barry, would make a “phenomenal” addition to the High Court. Barry has incurred fire from the right for a decision 15 years ago that upheld a lower court decision striking down a partial birth abortion ban. None of the candidates Saturday dared make Trump’s sister an issue to his face, but they no doubt will start bringing her up from a safer distance.
And Trump’s support of the “Kelo” decision, which conservatives have attacked as an unjust expansion of the right of the government to use eminent domain to take private property, could also be wielded by Trump’s GOP opponents against him. All in all, Trump may now need to clarify what type of justices he would appoint and make his thoughts about the judiciary more clear.
Trump sought to get out ahead of the issue, responding to the debates’s opening question about Scalia by suggesting he might nominate Seventhe Circuit Court of Appeals Judge Diane Sykes or Eleventh Circuit Court of Appeals Judge Bill Pryor, two respected conservatives. And Trump was careful to laud Scalia.
“Trump tells GOP not to vote on Obama nominee”
“This is a tremendous blow to conservatism. It’s a tremendous blow, frankly to our country,” he said of Scalia’s passing.
The rest of the candidates vied to demonstrate how committed they were to appointing a conservative.
“We need to put people on the bench that understand that the Constitution is not a living and breathing document,” said Sen. Marco Rubio. “It is to be interpreted as originally meant.”
Jeb Bush said he’d appoint someone just like Scalia.
“The simple fact is the next president needs to appoint someone with a proven conservative record, similar to Justice Scalia, that is a lover of liberty, that believes in limited government, that consistently applied that kind of philosophy, that didn’t try to legislator from the bench, that was respectful of the Constitution,” he declared.