This Dec. 13, 2006 photo shows Supreme Court Associate Justice Antonin Scalia during an address at a Northern Virginia Technology Council (NVTC) breakfast in McLean, Va.
This Dec. 13, 2006 photo shows Supreme Court Associate Justice Antonin Scalia during an address at a Northern Virginia Technology Council (NVTC) breakfast in McLean, Va. Alex Wong—Getty Images

The South Carolina GOP Primary Just Became All About Judges

Hours before the Republican White House hopefuls were set to take the stage, a shout rose up through the conference room where reporters were sitting at rows of tables.

“Scalia is dead,” a correspondent shouted to no one in particular—and to American politics at large.

Justice Antonin Scalia, a conservative giant who arrived at the Court in 1986 and reshaped legal thinking for a generation, was reported dead Saturday. The news came just before the GOP contenders were set to meet in Greenville, a week before South Carolina’s deeply conservatives Republicans weigh in on the White House race.

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Immediately, the campaigns had to reshuffle their strategy. Plans to connect with South Carolina’s voters suddenly were rendered out of date, and Saturday night’s debate had one focus for last-minute preparation.

“This is now a Scalia debate,” said one candidate’s chief debate coach. Other campaigns phoned their legal advisers. Generic platitudes about appointing judges who respect the Constitution were unlikely to be sufficient. They needed specifics, including potential names of judges they would nominate.

Judges are always a sensitive topic in presidential campaigns. Their lifetime appointments give them the potential to outlast any initiative or piece of legislation that a President initiates. Justices interpret—or kill—laws that Congress passes and executive moves the President makes. They are the final say on matters ranging from environmental regulations to congressional districts, from abortion to gun rights. In short, the judicial branch, when it chooses, can scuttle anything candidates campaign promise.

In South Carolina, which has its Republican primary on Feb. 20, the role of judges suddenly became a deciding factor for voters. Some of the candidates, such as former Supreme Court lawyer Ted Cruz, have riffs on activist judges as part of their campaign speeches. Advisers to others were taking swings at adding tougher language about judges to their speeches.

The first test will be Saturday night, when CBS hosts the six remaining candidates. The candidates summoned their advisers to hotel rooms and conference calls to figure out how to respond. Early statements suggested caution, but there was little chance debate moderator John Dickerson would let them stick with bland talking points.

Already, it was clear that some of the candidates—including two who would actually vote on a potential replacement in their current jobs—were trying to pressure President Obama to leave the position empty until the next President takes office on Jan. 20, 2017.

“We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Cruz tweeted. In other words: don’t even think about it, Obama.

It was the same from Sen. Marco Rubio of Florida. “The next President must nominate a Justice who will continue Justice Scalia's unwavering belief in the founding principles that we hold dear,” he said in a statement.

Others were casting Scalia as a model for their appointments: “He was an essential, principled force for conservative thought and is a model for others to follow. His dedication to the Constitution and love for and service to our country will be deeply missed,” Ohio Gov. John Kasich said in a statement.

Businessman Donald Trump called him “one of the best of all time” in a statement. “The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!” Trump said in a separate tweet.

Former Florida Gov. Jeb Bush and retired neurosurgeon Ben Carson were also set to debate.

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