Analysis: Election could ride on empty Supreme Court seat


By Cathleen Decker, Los Angeles Times

Supreme Court Justice Antonin Scalia’s death has turned a second-tier topic into a central facet of the 2016 presidential campaign: Among the new president’s first acts likely will be nominating a justice who will determine the balance of power on the court.

Potential court openings haven’t dominated debates thus far in the campaign, and voters have not often raised it, aside from a suggestion to Hillary Clinton that, if elected, she would appoint Barack Obama. But Scalia’s death changes all that, vaulting into prominence a choice that will determine the country’s course on voting rights, abortion, immigration, campaign finance, the environment and other issues.

The battle lines were drawn within minutes after Scalia’s death was announced, with Obama saying he would nominate a successor and Senate Majority Leader Mitch McConnell, who controls the schedule, saying that the Senate should not take up an appointment in the 11 months remaining in the president’s term. Republican presidential candidates immediately backed McConnell. Democrats objected, arguing that selecting a justice is Obama’s job — and deciding in prompt fashion is the Senate’s.


The political ramifications are many: Democrats and Republicans will have an issue around which to rally voters who might have considered the court a secondary issue, if that. Obama will have a chance to appoint a nominee who could influence political races up and down the ticket by appealing to a specific demographic group, even if the nominee is not ultimately confirmed.

Candidates in hot Senate races will be pressed to say how they would vote on Obama’s pick, since those elections will determine who controls the nomination process next year. And voters will witness a contemporaneous example of the Washington gridlock that already has inflamed anger on both sides in this presidential campaign.

“Maybe a Supreme Court vacancy will remind people that presidential elections are not circuses — they really are important,” said Charlie Cook, a nonpartisan political analyst. “The stakes just went up, and now everyone knows it.”

More often than not in presidential campaigns, hypothetical court appointments have had limited impact on voters’ decisions. In 1984, Democrats tried to turn the court into a campaign issue, hoping to block President Ronald Reagan from re-election. Voters ignored them, and two years after the Reagan landslide, he picked Scalia for the court.

But voters now are far more partisan than they were 30 years ago, and the issue is no longer abstract.

McConnell’s delay tactic represents a huge bet that a Republican will win the White House. But if the issue maintains its prominence through Election Day, Democrats would seem to benefit, as they almost always do when high-profile issues lead to increased turnout.

If nothing else, the winning Democratic candidate will now have an issue around which to unify the party — no small thing given the current vitriol between supporters of Clinton and Sen. Bernie Sanders of Vermont.


Democratic candidates trying to take back the Senate majority also would benefit from higher turnout, and the ability to hammer Republican incumbents over the Senate’s inaction. Those Republicans will be caught in the middle between their leadership and voters with a fresh reason to be irritated with Washington. Republican seats hang in the balance in several key states, including New Hampshire, Ohio, Pennsylvania and Florida.

Democrats stand to benefit because so much of what the court does directly affects Democratic voter groups that are growing in size: its judgment on gay marriage opened opportunities for gay Americans; its verdicts on abortion rights are a central issue for Democratic women; and many of the party’s other constituencies, including African-Americans, Latinos and Asian Americans, have mobilized around voting-rights issues that the court has ruled on in recent years.

Republican positions on many of those issues have reflected the views of the party’s base among conservative white Americans, who are a smaller percentage of the electorate every four years.

Obama’s announcement that he would put forth a nomination “in due time,” and that he expected the Senate to do its job by taking it up promptly, will put a public face on the impasse and frame Republicans as the cause.

For the presidential campaigns on both parties, the open question is whether the Supreme Court vacancy will mean a reopening of the debate over which candidate is the most electable.

Among Democrats, Clinton has argued that she is most ready and most electable. But voters entranced by Sanders have paid little heed.

On the Republican side, two senators who would be voting on the nomination were it to occur this year — Texas’ Ted Cruz and Florida’s Marco Rubio — will now have greater standing to argue that their Senate experience is valuable. During Saturday night’s presidential debate, Cruz said that Scalia’s death “underscores the stakes of this election.”

“We are one justice away,” he said, from reversals of conservative victories on abortion restrictions, the Second Amendment and the “religious liberty of millions of Americans.”

But the same argument about electability surfaced after the terrorist attacks in Paris and San Bernardino, Calif., and the result has been a muddle on the Democratic side and the continued dominance among Republicans of a nonpolitician, Donald Trump.

Despite the absence of much discussion of the court in the campaign so far, several of the candidates have given a sense of what they would look for in a nominee. Cruz, for example, who prides himself on his record of arguing cases before the high court, has criticized Chief Justice John G. Roberts for being insufficiently conservative and has questioned the high court’s decision legalizing same-sex marriage.

Clinton was asked at a Democratic town hall in Derry, N.H., last week what litmus tests she would impose on nominees.

“I’m looking for people who understand how the real world works, who don’t have a knee-jerk reaction to support business, to support the idea that, you know, money is speech, that gutted the Voting Rights Act,” she said. And then she turned to the issues that, Democrats now hope, may end up building their vote in November:

“We have to preserve marriage equality. We have to go further to end discrimination against the LGBT community. We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.”


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