During a town hall in Florence, South Carolina, Republican presidential candidate Sen. Marco Rubio warned primary voters that a theoretical President Hillary Clinton or Bernie Sanders would nominate someone to the Supreme Court who doesn’t “look or act or behave or believe any way” like late Justice Antonin Scalia. “They are going nominate people that want to expand the Constitution in a way that goes way beyond its original meaning,” Rubio said.
Like most Republican candidates and lawmakers, Rubio has already pledged to oppose any individual President Obama chooses to put forward to fill Scalia’s seat, which became vacant after the 79-year-old passed away on Saturday. Rubio’s position should come as a surprise to no one, as he called Obama “the worst president we’ve had in at least 35 years” on Monday.
However, while perhaps a slip of the tongue, Rubio’s reference to the “look” of Scalia could be interpreted as a racially coded reference to whom Democrats would likely appoint to the nation’s highest court. Reports of Obama’s possible short list for SCOTUS have featured people of color, including Attorney General Loretta Lynch and U.S. Circuit Court Judge Sri Srinivasan.
“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Obama said this weekend. “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.”
On Monday, Rubio told his audience in Florence, “Justice Scalia will go down in history as one of the greatest justices in Supreme Court history.” The Florida lawmaker predicted that the next president has an opportunity to make “at least two or three more” lifetime appointments to the Supreme Court.
He later told a questioner who raised GOP front-runner Donald Trump’s record of allegedly supporting liberal justices that Republicans “can’t take the chance” of nominating someone who doesn’t have a consistent record of backing conservatives.
“The people I’m going appoint, they’re going to be like Justice Scalia,” he said, adding that his core litmus test for a nominee is “How do you view the Constitution? Scalia viewed it the right way. What did the Constitution mean to the people who wrote it at the time they wrote it. That’s what we need more of.”
“We need at least five people like that on the Supreme Court,” Rubio added, insisting that if it doesn’t happen, “The Constitution is in a lot of trouble.”
He also repeated some familiar talking points: that Clinton’s email scandal “disqualified” her from the presidency and Sanders’ election would lead to the implementation of socialist policies. “We don’t want to be a socialist country,” he said. “If you want to be a socialist country, why don’t you move to a socialist country? We want to be America.”
Both Clinton and Sanders have joined the chorus of congressional Democrats calling for timely and bipartisan consideration for a new justice, especially considering that significant rulings on the docket could hang in the balance for almost a year if Scalia’s seat is left vacant.
“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,” Clinton said in statement.
“Let’s get on with it,” Sanders said in a separate statement to MSNBC on Sunday.
But Rubio has remained stubbornly opposed to the president exercising his constitutional duties. “It doesn’t really matter what they’ve done, what Reagan did back in ‘87. It was in ‘87 when he nominated him, so obviously it was still earlier in the year. If this was November, October or September of last year where the president had more than a year left in office, then perhaps this would be a different discussion,” Rubio said on Fox News Sunday.
Rubio has previously said, “It’s not unprecedented [to wait]. It’s been over 80 years since a lame-duck president has appointed a Supreme Court justice.”