It feels crass to discuss politics so soon after the passing of Supreme Court Justice Antonin Scalia, a conservative icon, but the plain fact is his death has major implications for the 2016 presidential race.
With so many aging justices, control of the White House and Senate will likely effect the Supreme Court majority too. Before Scalia’s death, the court was precariously split between conservatives and liberals. Now President Barack Obama has the opportunity to give the liberal bloc the majority.
Will Senate Republicans let him? They will have the power to block the confirmation of any Obama nominee and could argue that the Supreme Court majority is something that the voters should in effect get to decide in November.
Either way, it reinforces the Republican argument that the composition of the federal judiciary is a compelling reason for conservatives to defeat Hillary Clinton or Bernie Sanders in the general election this year.
The issue of judges will now take on a new life in the Republican primaries too. While every Democratic appointee to the Supreme Court has been a reliable liberal since Byron White veered right after John F. Kennedy put him on the court, Republican presidents have a spottier record.
Some of the biggest liberal activists of the last few decades — Earl Warren, Harry Blackmun, John Paul Stevens — have been appointed by Republican presidents. Ronald Reagan, George H.W. Bush and George W. Bush each made a concerted effort to elevate conservative justices. Bush 41 choice David Souter joined the court’s liberal bloc.
Reagan nominees Sandra Day O’Connor and current Justice Anthony Kennedy were more conservative, but voted with the liberals on some important decisions. Kennedy wrote the decision reaffirming Roe v. Wade in 1992 and also last year’s ruling in favor of nationwide same-sex marriage.
John Roberts, the chief justice chosen by Bush 43, has been more conservative than Kennedy or O’Connor. But even he played a pivotal role in sparing Obamacare from a constitutional challenge that would have overturned the law.
At first glance, this would seem to be a major advantage for Ted Cruz, who is deeply plugged into the conservative legal network from which Republican presidents would surely draw their Supreme Court talent pool. It also raises major questions about Donald Trump, who has no track record on conservative legal issues, has defended the Kelo decision (written by John Paul Stevens) expanding the scope of eminent domain and whose sister is a pro-Roe federal judge (Trump once said she would make a “phenomenal” justice but hasn’t committed to nominating her).
Expect the other Republican presidential candidates to pepper Trump with questions about what kind of Supreme Court justices he’d pick, perhaps as early as at tonight’s debate. The rival campaigns may begin to argue that it is too risky to leave the Supreme Court majority up to Trump.
Jeb Bush could also conceivably take some grief for his father’s and brother’s appointees, although they include reliable conservatives like Clarence Thomas and Samuel Alito as well as Roberts and Souter.
Scalia’s death will cast a major shadow over the Republican presidential debate and could have a real impact on the race going forward.
