GREENVILLE, S.C. (BP) — Republican presidential hopefuls agreed during a Feb. 13 debate that much is at stake in the nomination of a Supreme Court justice to succeed the late Antonin Scalia, who died earlier that day. Most said they believe his successor should be nominated by the next president.
The Greenville, S.C., debate opened with a moment of silence in Scalia’s honor, and the first segment was devoted to discussing the Supreme Court, a topic to which the candidates returned three additional times.
Scalia’s death “underscores the stakes of this election,” Texas Sen. Ted Cruz said, referencing the fact the next justice selected likely will break a 4-4 tie between the court’s liberal and conservative wings. Later, Cruz added, “Two branches of government hang in the balance.”
“We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states,” Cruz said. “We are one justice away from a Supreme Court that will reverse the Heller decision, one of Justice Scalia’s seminal decisions that upheld the Second Amendment right to keep and to bear arms. We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.”
Five of the six candidates — Cruz, neurosurgeon Ben Carson, Ohio Gov. John Kasich, Florida Sen. Marco Rubio and businessman Donald Trump — explicitly expressed their preference that a new justice not be nominated or confirmed until the next president begins his or her term in January. Former Florida Gov. Jeb Bush said President Obama should adopt a “consensus orientation” toward his nomination but added he does not expect that to occur. Bush spoke as though he expects the next president to nominate Scalia’s successor though he did not state that explicitly.
Cruz and Trump were the only candidates to name specific individuals they believed would make good Supreme Court nominees.
Cruz said he would have nominated former federal appellate Judge Michael Luttig to fill the 2005 vacancy for which Chief Justice John Roberts was nominated. A George H.W. Bush appointee to the Fourth U.S. Circuit Court of Appeals, Luttig was interviewed by George W. Bush in 2005 when the younger Bush was attempting to fill two Supreme Court vacancies. Luttig clerked for Scalia when the latter was a federal appellate judge, and Cruz clerked for Luttig.
Trump, in responding to a question about nominating justices, said federal judges Diane Sykes and Bill Pryor are “fantastic people.” Sykes, a former justice on the Wisconsin Supreme Court, was nominated by George W. Bush to the Seventh U.S. Circuit Court of Appeals. Pryor was appointed by George W. Bush to the Eleventh U.S. Circuit Court of Appeals in a 2004 congressional recess appointment after Senate Democrats initially blocked his confirmation. Pryor previously had called the Supreme Court’s Roe v. Wade abortion decision “the worst abomination in constitutional law history,” according to a transcript of his 2003 confirmation hearing.
Cruz and Rubio said Senate confirmation of any nominee put forward by Obama would mark a departure from an 80-year precedent of Supreme Court justices not being nominated and confirmed during presidential election years.
The fact-checking website Politifact.com stated it has been 76 years since a Supreme Court justice was nominated and confirmed in an election year. However, the experts interviewed by Politifact argued that is more of a coincidence than a political tradition. On three previous occasions, a justice was nominated and confirmed in a presidential election year, according to Politifact.
Among the candidates’ other statements on the Supreme Court vacancy:
— Bush said he would nominate justices “that have a proven record in the judiciary.”
“The problem in the past,” Bush said, “has been we have appointed people thinking you can get it through the Senate because they didn’t have a record. And the problem is that sometimes we’re surprised. The simple fact is the next president needs to appoint someone with a proven conservative record, similar to Justice Scalia.”
— Carson said “the whole concept of lifetime appointments … probably needs to be looked at pretty carefully at some point” because the average age of death when the Constitution was written was “under 50.” Because of relatively short lifespans at the time, “the whole concept of lifetime appointments for Supreme Court judges and federal judges was not considered to be a big deal.”
— Cruz charged that “if Donald Trump is president, he will appoint liberals” to the Supreme Court. Cruz based his charge on the assertion that Trump has contributed to the political campaigns of liberals, and “nobody who cares about judges would contribute to John Kerry, Hillary Clinton, Chuck Schumer and Harry Reid.”
In response, Trump noted Cruz voted to confirm Chief Justice John Roberts, who, Trump said, “twice approved Obamacare.”
— Kasich said his preference is that Obama not nominate a replacement for Scalia and that that “the next president of the United States decide who is going to run the Supreme Court, with a vote by the people of the United States of America.” If Obama “were to nominate somebody,” Kasich said, “let’s have him pick somebody that’s going to have unanimous approval and such widespread approval across the country that this could happen without a lot of recrimination.”
— Rubio praised Scalia for his philosophy of interpreting the Constitution according to the meaning intended by its original authors.
Scalia was “someone who defended consistently the original meaning of the Constitution, who understood that the Constitution was not there to be interpreted based on the fads of the moment, but it was there to be interpreted according to its original meaning,” Rubio said. “Justice Scalia understood that better than anyone in the history of this republic.”
Rubio specifically praised Scalia’s dissent from the court’s ruling last year legalizing same-sex marriage nationwide.
— Trump urged Senate Majority Leader Mitch McConnell to “do something about” Obama’s anticipated attempt to nominate a Supreme Court justice this year. “It’s called delay, delay, delay,” Trump said.
In related news, both Democrats running for president released statements on Scalia’s death.
Former Secretary of State Hillary Clinton called Scalia a “dedicated public servant who brought energy and passion to the bench.” She went on to say, “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.”
Vermont Sen. Bernie Sanders said, “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court. My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”