WASHINGTON – The presidential election just got real.
The unexpected death of Supreme Court Justice Antonin Scalia — and the immediate declaration from Republicans that the next president should nominate his replacement — adds even more weight to the decision voters will make in November’s general election.
For months, the candidates have espoused theoretical, sometimes vague, policy proposals. Now, the prospect of President Barack Obama’s successor nominating a Supreme Court justice immediately after taking office offers a more tangible way for voters to evaluate the contenders.
Candidates in both parties moved quickly to reframe the election as a referendum on the high court’s future.
“Two branches of government hang in the balance, not just the presidency, but the Supreme Court,” Texas Sen. Ted Cruz said in the latest GOP debate, held in South Carolina just hours after word filtered out Saturday about Scalia’s death in Texas. “If we get this wrong, if we nominate the wrong candidate, the Second Amendment, life, marriage, religious liberty, every one of those hangs in the balance.”
Democrat Hillary Clinton painted a similarly stark scenario.
“If any of us needed a reminder of just how important it is to take back the United States Senate and hold onto the White House, just look at the Supreme Court,” Clinton said.
Clinton has said she would have “a bunch of litmus tests” for potential nominees, including a belief that the Citizens United ruling clearing the way for super political action committees and unlimited campaign contributions should be overturned. She also said the court’s makeup is crucial to preserving abortion rights and the legality of gay marriage nationwide.
Bernie Sanders, who is challenging Clinton for the Democratic nomination, has raised opposition to Citizens United as a requirement for any Supreme Court nominees.
Scalia, a hero of conservatives during his nearly 30 years on the Supreme Court, was found dead Saturday at a resort ranch in Texas. The court now is divided between four liberal and four typically conservative justices, putting the ideological tilt up for grabs.
Obama pledged to nominate a replacement in “due time,” even after Senate Majority Leader Mitch McConnell, R-Ky., said that responsibility should fall to the winner of the 2016 election.
Obama could try to ram a nominee through the Senate this year, taking a high court vacancy off the next president’s immediate to-do list. Even if that were to happen, a confirmation vote probably would be months away, leaving the Supreme Court in the center of the campaign during the nomination process.
Former Attorney General Alberto Gonzales, who served in the Cabinet of President George W. Bush, said Monday that Obama has an obligation to select a replacement for Scalia, telling CNN that “the president has to do his job.” Gonzales said that the Senate, likewise, has a role and should weigh Obama’s choice “on its own calendar.”
With three other justices over the age of 75, the next president could have other vacancies during his or her tenure, even if Obama fills Scalia’s seat.
It’s unclear how the new focus on the Supreme Court might affect voters’ decisions in an election that has seen surprising and unconventional candidates such as Donald Trump and Sanders challenge their parties’ establishments.
Previous political thunderbolts that were supposed to push voters toward more traditional candidates, such as last fall’s terrorist attacks in Paris and California, passed without any negative impact on Trump and Sanders. In fact, Sanders has gotten stronger since then, with the economic-focused Vermont senator handily defeating Clinton in the New Hampshire primary and finishing a close second in the Iowa caucuses.
Trying to counter Sanders’ momentum, Clinton has urged voters to consider which candidate is most electable in November. With the balance of the Supreme Court now potentially on the line, Clinton and her allies are certain to increase their warnings about the risk of sending a self-declared democratic socialist to face a Republican in the fall.
“For any Democrat thinking about casting a protest vote for Sen. Sanders, this should serve as a wake-up call for what’s exactly at stake,” said Jim Manley, a former aide to top Democratic senators.
Among Republicans, Marco Rubio, Jeb Bush and John Kasich are casting themselves as candidates who could appeal to swing voters in the general election and put the GOP in position to guide the next court nominations. But that could open them up to questions from Republican primary voters about the ideological purity of their judicial choices.
Cruz is using the potential vacancy to build on his long-standing argument that Republicans should select a nominee with the most conservative credentials. An uncompromising conservative since arriving in the Senate, Cruz vowed to put “principled constitutionalists” on the Supreme Court. He contends Trump could not be trusted to do the same.
“Donald Trump is president, he will appoint liberals,” said Cruz, noting the billionaire’s past support for Democratic politicians.
Trump was alone among the candidates in naming specific justices he would consider nominating. He singled out Diane Sykes and William Pryor, federal judges appointed by former President George W. Bush.
During Saturday’s debate, Kasich bemoaned that Washington and presidential candidates had “run so fast into politics” following Scalia’s death.
But if anything, the speed at which politics did take over portends a furious fight to come over which candidate gets to put his or her imprint on the court.
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