Scalia’s Replacement Adds Another Divisive Issue to Campaign

A flag at the Supreme Court is lowered to half staff in honor of Scalia. (Photo by BRENDAN SMIALOWSKI/AFP/Getty Images)
A flag at the Supreme Court is lowered to half staff in honor of Scalia. (Photo by BRENDAN SMIALOWSKI/AFP/Getty Images)
Posted February 14, 2016 at 1:22am

The death of Supreme Court Justice Antonin Scalia creates a fight over whether President Barack Obama should nominate a replacement or wait for his successor to do so.  

The political battle lines were drawn about an hour after the Supreme Court confirmed the 79-year-old justice died Saturday at a luxury resort in West Texas. Key Republicans said the next president, not Obama, should nominate his replacement.  

Obama said that he will “fulfill my constitutional responsibilities to nominate a successor in due time.” The White House, however, said on Sunday night in a statement that he would not send a name up to Capitol Hill until after this week’s congressional recess. And when he does, the president expects the Senate to consider the nominee “consistent” with its responsibilities under the Constitution.  

In making that vow, Obama he essentially rejected calls to do otherwise by Senate Majority Leader Mitch McConnell, R-Ky., and two of his party’s presidential hopefuls, Sen. Ted Cruz of Texas and Sen. Marco Rubio of Florida.  

“There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” Obama said in a statement. “These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy.”  

McConnell said in a statement after Scalia’s death that “the American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”  

Cruz, running second to the party’s front-runner, Donald Trump, tweeted sentiments similar to McConnell’s.  

On Sunday, Cruz answered “absolutely” when asked on ABC’s “This Week” if he would filibuster “anyone” appointed by Obama to fill the seat on the narrowly divided court.

But his threat is more campaign bluster than it is likely. McConnell already is insisting an Obama nominee would never be brought to the floor. 

To be sure, Republicans appear already deeply entrenched to deny Obama another Supreme Court appointee. In fact, it’s doubtful his nominee would even receive a hearing in front of the Senate Judiciary Committee. 

And the bad blood in Washington could get even worse — Democrats could try to bring up a nomination under a unanimous consent motion only to be blocked by GOP senators. 

The last time the Senate confirmed a nominee in a presidential election year was Justice Anthony Kennedy in early 1988, during Ronald Reagan’s final year in office. A Congressional Research Service report noted that in recent years, Supreme Court confirmations have lasted an average of 68 days.  

Liberal political groups, meanwhile, urged Obama to pick a progressive nominee to replace the staunch conservative.  

“We fully expect and encourage President Obama to swiftly nominate a replacement justice who share our progressive values including protecting abortion rights and overturning Citizens United,” said Charles Chamberlain, executive director of Democracy for America. That’s a grassroots organization founded by former Vermont Gov. Howard Dean, a one-time Democratic presidential candidate and former Democratic National Committee chairman.  

Republicans have long feared the prospect of Obama nominating a liberal judge — and finding just enough votes in the Senate for confirmation.  

If the president sends up a nomination and Republicans seek to block it, Obama, Democratic lawmakers and the party’s eventual White House nominee would be able to intensify their claims that Republicans are the true masters — and the sole owners — of the art of Washington obstruction.  

Don Stewart, McConnell’s spokesman, said Republican leaders are not concerned about such a scenario.  

The eventual Republican nominee could, in large part, need a big turnout from conservative voters who could be swayed by campaign ads and rhetoric about a rare chance to ensure Scalia’s replacement fits his judicial philosophy.  

To that end, Trump tweeted this:  

Rather than using the leverage they have now to push Obama toward a more moderate nominee, they also could end up with a Democratic president claiming a national mandate and a Senate controlled by his or her party, though narrowly. The result could be a nominee even less to their ideological liking than one a final-year Democratic president with a GOP-run Senate could hope to get confirmed.  

“It raises the stakes for both White House and for the Senate,” said John Feehery, a GOP political strategist. “If we pick a Trump or a Cruz, we will lose the White House and the Senate, and that will make it much more likely that there will be a liberal justice to replace Scalia.”  

McConnell and Republicans, by blocking a potential Obama nominee, also would be rolling the dice on the campaign trail. The tactic could anger independent voters in key swing states their nominee would have to win in order to capture the White House.  

GREENVILLE, SC - FEBRUARY 13:  Republican presidential candidates (L-R) Ohio Governor John Kasich, Jeb Bush, Sen. Ted Cruz (R-TX), Donald Trump, Sen. Marco Rubio (R-FL) and Ben Carson participate in a moment of silence for U.S. Supreme Court Justice Antonin Scalia, who has passed away today, during a CBS News GOP Debate February 13, 2016 at the Peace Center in Greenville, South Carolina. Residents of South Carolina will vote for the Republican candidate at the primary on February 20.  (Photo by Spencer Platt/Getty Images)
Republican presidential candidates observe a moment of silence for Scalia during their debate in South Carolina on Saturday. (Spencer Platt/Getty Images)

Republican presidential candidates began a debate in South Carolina on Saturday evening with a moment of silence in Scalia’s honor. But they wasted little time in backing McConnell.

Trump said he is “absolutely sure” Obama will follow through on his vow to submit a nominee — adding he, as president, certainly would do so. “I hope that our Senate is going to be able … to do something about it,” Trump said, summing up the strategy he wants Senate Republicans to use this way: “It’s called delay, delay, delay.”

Ohio Gov. John Kasich said the justice’s death comes at an inopportune time because “the country is so divided right now.”

“And now we’re going to see another partisan fight take place. I really wish the president would think about not nominating somebody,” Kasich said. “If you were to nominate somebody, let’s have him pick somebody that’s going to have unanimous approval, and such wide spread approval across the country that this could happen without a lot of recrimination.”

Notably, former Florida Gov. Jeb Bush defended Obama’s intention to send the Senate a nominee — and delivered an endorsement of a powerful executive branch.

“Of course, the president, by the way, has every right to nominate Supreme Court justices,” Bush said. “I’m an Article II guy [of] the Constitution. We’re running for the president of the United States. We want a strong executive for sure.”

Democrats have put a special emphasis on defeating five Republican incumbents who represent states that Obama won in both of his presidential campaigns: Rob Portman of Ohio; Kelly Ayotte of New Hampshire; Pat Toomey of Pennsylvania; Mark Kirk of Illinois and Ron Johnson of Wisconsin. In each of their states, winning over middle-of-the-road voters who prefer temperamentally and ideologically moderate candidates is essential to victory — and those are exactly the type of voters Democrats hope a contentious fight over the Supreme Court vacancy will alienate most.  

Each of the Republican quintet would face pressure from their Democratic opponents to either work with Obama on the confirmation process or risk being labeled part of a dysfunctional Congress. That criticism could be potent, because many Senate Republican campaigns have argued that they have made the upper chamber less dysfunctional than it was under the leadership of Democrat Harry Reid — a message central to many of their re-election campaigns in the early going.  

“Mitch McConnell’s partisan obstructionism isn’t just unprecedented but it’s indefensible,” said Shripal Shah, spokesman for the Democratic-aligned Senate Majority PAC. “His refusal to do his job undermines our country’s judicial system and today he just made his entire caucus that much more vulnerable this November, especially considering voters are already fed up with dysfunction in Washington. So much for all that rhetoric about how the ‘majority is working’ under Republican control.”  

And some of the senators have signaled past openness to Obama’s high court selections. When he was running for the Senate in Pennsylvania against Democratic Sen. Arlen Specter in 2009, Toomey said would have supported the nomination of Sonia Sotomayor. (A year later, still as a candidate running for Senate, he said he would have voted against Elena Kagan’s confirmation.)  

But should any of them vote in favor of Obama’s nominee, or even entertain the notion that the Senate should consider confirming he or she, the backlash among conservatives could be fierce. In some cases, it may be too late for conservative challengers to make the ballot — but a loss of enthusiasm among conservatives in the fall could cost the incumbents key votes.  

Ayotte added her voice on Sunday night to the chorus of Republicans calling on Obama to stand down on the nomination. “We’re in the midst of a consequential presidential election year, and Americans deserve an opportunity to weigh in given the significant implications this nomination could have for the Supreme Court and our country for decades to come,” she said.  

The politics of a Supreme Court vacancy could trip up Democrats, too. One incumbent, Michael Bennet of Colorado, is considered vulnerable in the fall, and his GOP foes will argue that any push to confirm a new justice usurps the ability of voters to voice their opinion about which party’s presidential nominee gets to pick Scalia’s replacement.  

The possibility of a Supreme Court justice nomination fight in 2017 would also focus more attention on the battle for the Senate majority. If Democrats win the presidency, and the tie-breaking Senate vote given to the vice president, they must win a net of four seats to regain control of the chamber; the number swells to five if Republicans win the White House.  

The increased focus would mean more money, not just for the candidates and party committees but for the armada of Super PACs and non-profit groups on both sides.  

The Democratic Senate Campaign Committee and National Republican Senatorial Committee declined to comment.  

Contact Bennett at and follow him on Twitter at @BennettJohnT.
Alex Roarty contributed to this story. Contact him at and follow him on Twitter at @Alex_Roarty.

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