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GOP leaders say Obama must not fill Supreme Court seat

Supreme Court Justice Antonin Scalia.Kevin Lamarque/Reuters/File

GREENVILLE, S.C. — The sudden death of Justice Antonin Scalia sent a shock wave through the political universe, rocking Republicans who lost a conservative icon and almost immediately leading the party’s candidates for the presidential nomination and other top Republicans to pledge to block any nomination for a replacement made by President Obama.

With partisan gridlock freezing most action in Congress, the balance of power on the Supreme Court is of utmost importance, determining the fate of a court challenge to White House executive orders and battles coming up from the states on everything from global warming to illegal immigration.

Scalia’s death immediately thrusts control of the Supreme Court to the forefront of the presidential campaign agenda for both parties.


Less than 90 minutes after his death was confirmed by Chief Justice John G. Roberts Jr., both sides were fighting over the future of his seat. With so many crucial cases pending, it could make judicial decision-making and the court’s ideological tilt prominent issues during the general election.

“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” President Obama said in brief remarks Saturday night. “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. These are responsibilities that I take seriously as should everyone. They’re bigger than any one party.”

The candidates and Republican members of Congress, while mourning Scalia, immediately declared it a foregone conclusion that the Republican Senate will not confirm any replacement Obama nominates in his last year in office.

The instant reaction from Washington Republicans on the Judiciary Committee was that any nominee from Obama would be blocked.

“What is less than zero?” Conn Carroll, a spokesman for Senator Mike Lee of Utah, wrote on Twitter. “The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia.”


Senate majority leader Mitch McConnell quickly called for a delay in confirmation until after a new president is elected and sworn in 2017. If Republicans unite, they could use their majority to prevent any nomination from moving forward.

The partisan fight was quickly joined. Senate minority leader Harry Reid’s office quickly pointed out that the average wait for a Supreme Court nominee to be confirmed since the administration of President Gerald Ford has been 75 days.

By waiting until next year to proceed, Senate Republicans will be cast as obstructionist, holding up the business of the judicial system for partisan gain. It could put candidates in tight races — such as Senator Kelly Ayotte in New Hampshire and Senator Rob Portman in Ohio — in a difficult spot.

“The president can and should send the Senate a nominee right away,” Reid said in a statement. “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”

Perhaps it is fitting that Scalia’s death will result in a pitched battle in Washington and on the presidential hustings over when to fill his post. Scalia was the most politically outspoken member of the Supreme Court and often wrote scathing, acerbic opinions, driven by his firm belief that the Constitution should be interpreted as its original authors intended.


He also was in the majority in the 2000 Bush v. Gore decision that ended the Florida recount controversy and installed George W. Bush in the White House. As the Associated Press noted in his obituary, his response to the controversy in subsequent years was simply, “Get over it.’’

News of Scalia’s death broke just four hours before six Republicans met in South Carolina for their ninth debate. The change in mood throughout the Peace Center, the hall in downtown Greenville where the debate was being held, was immediately apparent. This was no longer another debate on the political calendar. It was a political wake.

The debate began with a moment of silence for Scalia. Then the candidates paid homage.

“He will go down as one of the great justices in the history of this republic,” said Senator Marco Rubio.

“This is at tremendous blow to conservatism,” Donald Trump said. “This is a tremendous blow, frankly to our country.”

He called on Senate Republicans to block any nominee Obama puts forward. “It’s up to Mitch McConnell and everybody else to stop it,” Trump said. “It’s called delay, delay, delay.”

Ohio Governor John Kasich lamented how quickly the discussion turned to partisan bickering. “It’s amazing,” he said. “It’s not even two minutes after the death of Justice Scalia. … I just wish we hadn’t run so fast into politics.”

The speed of the descent into pointed politics was then immediately apparent as the debate moved past the mourning of Scalia and into open discord, especially between Trump and former Florida governor Jeb Bush.


They fought over the legacy of the 43rd president, George W. Bush. Trump accused the Bush administration of lying about weapons of mass destruction in the buildup to the 2003 invasion of Iraq. Trump also questioned the former president’s record on 9/11.

“I [couldn’t] care less about the insults Donald Trump gives to me,” Bush responded, growing more animated. “But I am sick and tired of him going after my family.”

Beyond the debate hall, on the matter of a successor to Scalia, an immediate political question loomed large. Will Senate Republicans stymie a lame-duck president, preventing Obama from cementing a liberal legacy on the court? Answer: Most likely.

What will happen with a series of crucial upcoming Supreme Court decisions — immigration and environmental regulations among them — now that there is a four-four liberal-conservative split? Answer: In any four-four tie on the Supreme Court, the ruling of the lower court is affirmed. So the immediate impact is to give regional federal courts more power to dictate final outcomes.

In the presidential primary campaigns in each party, a Supreme Court vacancy could give mainstream candidates a stronger hand.

“Electability may move up as a concern in Democratic race as a consequence of Scalia’s death,” said Democratic strategist David Axelrod on his Twitter feed. “Feels like this may favor @HillaryClinton.”

The same could be said for Republican primary. If conservative voters feel greater urgency about a Supreme Court pick, they may favor a candidate who has a better shot at beating Hillary Clinton or Bernie Sanders.


“You can’t replace him if you don’t win,” Senator Lindsey Graham, a South Carolina Republican who has endorsed Bush, told reporters here. “I hope conservatives will understand this is a wakeup call — that you’d better nominate somebody and get 270 electoral votes. Donald Trump can’t. Ted Cruz can’t.”

Democratic presidential candidates moved quickly to adjust to the new landscape.

Hillary Clinton was told by an aide about Scalia’s death just after she dropped by a soccer practice at the Las Vegas Indoor Sports Center.

“The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution,” Clinton said in a statement. “The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.”

In a brief statement, Democratic presidential contender Bernie Sanders didn’t weigh in on whether Obama should appoint a replacement for Scalia.

Sanders said he “differed with” Scalia, but also described him as a “brilliant, colorful, and outspoken member of the Supreme Court.”

Democratic groups called on Obama to nominate a replacement.

“We fully expect and encourage President Obama to swiftly nominate a replacement justice who shares our progressive values including protecting abortion rights and overturning Citizens United,” said Charles Chamberlain, the executive director of the liberal group Democracy for America.

Obama will probably be compelled to put forward a candidate for consideration, even if confirmation by the Senate is unlikely and getting the nomination may be the most thankless responsibility in Washington in 2016.

Three possibilities floated by SCOTUS blog, a respected source of Supreme Court news, include Patricia Millett and Sri Srinivasan from the D.C. Circuit Court and Paul Watford from the Ninth Circuit Court.

Another option could be a longtime member of the Senate Judiciary Committee who is close with Obama: Vice President Joe Biden.

During a campaign stop in Iowa last month, Clinton said appointing Obama himself to the Supreme Court would be “a great idea.”

Obama has downplayed such an idea. “I think being a justice is a little bit too monastic for me,” he told The New Yorker in 2014. “Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”

Matt Viser can be reached at Follow him on Twitter @mviser.