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How Scalia’s Death Could Shake Up GOP Race

5 minute read

U.S. Supreme Court Justice Antonin Scalia, who died Saturday at age 79, was among the few figures in government whose passing will have massive implications for each of its three branches.

Scalia’s death leaves a gaping hole on the high court, throwing the outcome of critical cases pending this term into question. In Congress, an epic battle over the confirmation of his proposed successor could consume the Senate calendar, sidelining other legislation. And of course, the loss of Scalia, a transformative conservative jurist, is likely to upend an already chaotic Republican nominating contest.

It’s impossible to predict exactly how Scalia’s death will reshape the GOP race. But the intuitive answer is that it’s most likely to boost Texas Sen. Ted Cruz, while posing dangers for Republican frontrunner Donald Trump.

Tragedy has a way of focusing presidential campaigns by reminding voters of the stakes. In the fall 2008, Barack Obama’s steady reaction to a spiraling financial crisis helped convince voters that a young freshman senator was ready to take the reins of the American economy. Four years later, Obama was boosted again by his handling of Hurricane Sandy. Terrorist attacks in Paris and San Bernardino, California, have already made foreign policy a pressing focus of this GOP nominating contest. And in an election where personality has often trumped policy, the prospect of the next President filling a pivotal slot on the Court could give some conservatives pause about Trump.

If the race shifts onto the treacherous terrain of constitutional theory, Cruz certainly stands to benefit. In his previous role as solicitor general of Texas, the senator argued before the bench nine times. A graduate of Harvard Law, he studied at the knee of some of the conservative moment’s legal giants, clerking for former Supreme Court Chief Justice William Rehnquist and before that Judge Michael Luttig, a federal appeals court judge renowned for his rock-ribbed conservatism.

Plenty of Republicans don’t like Cruz, but few would dispute his deep grasp of constitutional principles or his long record of conservative legal advocacy. At the highest levels of the judicial system, he took on a series of charged conservative causes, from the death penalty to state sovereignty to gun control. Among the GOP candidates, he can credibly present himself as a safe choice for voters concerned about replacing Scalia with a like-minded conservative jurist.

“Justice Scalia fundamentally changed how courts interpret the Constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism,” Cruz said in a statement issued shortly after the jurist’s passing was confirmed. “He authored some of the most important decisions ever, including District of Columbia v. Heller, which recognized our fundamental right under the Second Amendment to keep and bear arms. He was an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights. All liberty-loving Americans should be in mourning.”

Trump, meanwhile, is a wild card. The real-estate magnate is famously litigious, but it’s hard to say what his views might be on subjects like constitutional originalism. And he doesn’t have much time to cram. The candidates’ criteria for a Supreme Court nominee will surely be a closely scrutinized topic at tonight’s Republican debate in Greenville, South Carolina.

Expect rivals, who have been warily circling the GOP front-runner, to pounce on constitutional questions in an effort to illustrate how risky it would be to hand Trump a pivotal Court nomination. Last fall, for example, Trump went on record saying he’d love to nominate his sister to the bench. For conservatives, the problem with that idea is not just nepotism. Maryanne Trump Barry, a senior appellate judge in the Third Circuit, is a supporter of a woman’s constitutional right to abortion.

“Justice Scalia was a remarkable person and a brilliant Supreme Court Justice, one of the best of all time,” Trump said in a statement released Saturday night. “His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms”

Rivals are likely to argue that it would be dangerous to entrust Trump, whose views on constitutional theory are so murky, with a nomination that will shape the future of the court. As Cruz often notes on the campaign trail, Republican presidents have a checkered track record with their Supreme Court nominees. “We only bat about .500” when it comes to a Republican president installing a conservative, Cruz likes to say.

One needn’t look further than the composition of the current Court for evidence: Justice Anthony Kennedy, who often serves as its swing vote, was nominated by President Reagan, who also selected Justice Sandra Day O’Connor. Justice Souter, who retired in 2009, was nominated by President George H.W. Bush before drifting left. Former President George W. Bush whiffed by nominating of Harriet Miers, his White House counsel, who withdrew amid fierce blowback from conservatives. And even Chief Justice John Roberts, another Bush selection, has drawn heavy criticism from conservatives—including Cruz—for abandoning conservatives and upholding Obamacare.

One by one, Republican presidential candidates began calling on Saturday night for the Senate to thwart Obama’s ability to nominate Scalia’s successor. Instead, they argued, the power should pass to the next President. With a majority in the Senate, Republicans would be able to reject an Obama nominee if they band together. And Senate Majority Leader Mitch McConnell signaled on Saturday that he intends to do just that.

“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new President.”

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Write to Alex Altman at alex_altman@timemagazine.com