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Control of the Supreme Court now at stake in 2016

The Supreme Court justice's death has made the presidential election a referendum on control of both White House and the judiciary.
Supreme Court Justices Pose For Annual Portrait
WASHINGTON - OCTOBER 31: Justice Antonin Scalia poses for photographers at the U.S. Supreme Court October 31, 2005 in Washington DC. Earlier in the day U.S....

This story has been updated.

The unexpected death of conservative Supreme Court Justice Antonin Scalia has suddenly raised the stakes of the 2016 presidential election, giving the American people not only a referendum on who should control the White House but the judiciary as well.

Scalia’s absence imperils the 5-4 conservative majority on the court. A Democratic president elected next November would guarantee liberal control of the high court, while a Republican victory would cement the conservative majority for another four or eight years.

The Republican-controlled Senate is unlikely to confirm any replacement nominated by President Obama in his final months in office, leaving the decision hanging over the presidential campaign and giving the next president an enormous prize the moment he or she is inaugurated. 

The issue has already emerged as a political battle, with Senate Majority Leader Mitch McConnell and multiple GOP candidates arguing that a future president should pick Scalia's successor. Obama, along with leading Democrats, have countered that such a lengthy delay would hamper the judicial system. 

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

Addressing the nation from California on Saturday night, Obama hailed Scalia as a "towering legal figure" and challenged the Senate to consider and confirm his replacement. 

"I plan to fulfill my constitutional responsibilities to nominate a successor in due time," Obama said. "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."

The ranking Democrat on the Judiciary Committee, Sen. Pat Leahy of Vermont, warned in a statement that the Supreme Court is "too important to our democracy for it to be understaffed for partisan reasons.

"Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities," Minority Leader Harry Reid said in a statement, setting up an intense conflict should Obama move forward with a replacement. 

In clarifying the already enormous implications of the election, the news could raise the importance of electability in both primaries, especially given that the influence of the courts is even more critical in times of political gridlock.

In the meantime, Scalia’s death complicates a number of high-profile cases currently before the high court, including Obama’s sweeping executive actions on climate change and immigration.

Both Hillary Clinton and Bernie Sanders have pledged only to nominate justices who would overturn the court’s 2010 Citizens United decision, which dramatically expanded the flow of money into politics by paving the way for super PACs and direct corporate donations.

And Clinton drew a hard line against GOP calls to wait until a new president is elected to replace Scalia. "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," she said in statement.

Sanders later echoed that sentiment, with a spokesperson saying that the candidate believes the Senate has a constitutional duty to vote on confirmation. "Let's get on with it," Sanders said.

For the Republican field, which will meet tonight to debate in South Carolina, the news immediately thrusts the issue of judicial nominations to the forefront of the race.

Candidates rushed to praise Scalia after the news broke.

Texas Sen. Ted Cruz, who clerked for the late Chief Justice William Rehnquist and argued cases before the court as his state’s solicitor general, said in a statement that 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.”

On Twitter, Cruz added that, ideally, “the next president names his replacement” rather than Obama.

Florida Sen. Marco Rubio also implied that the senate should refrain from confirming Obama's choice, should he nominate a prospective justice. 

"The next president must nominate a justice who will continue Justice Scalia's unwavering belief in the founding principles that we hold dear," Rubio said in a statement. 

Dr. Ben Carson went further in explicitly calling on the Senate to reject any Obama nominee out of hand. 

"Given the dire condition our democracy currently finds itself under Obama's ideological agenda, I call on the Senate to stop any attempts to fill this crucial seat until we the people elect a strong constitutionalist this November," he said in a statement. 

Donald Trump has been attacked in the past by rivals for suggesting his sister, Judge Maryanne Trump Barry, would be a “phenomenal” justice despite ruling against abortion restrictions in the past. However, he also added that she wasn’t interested in the job. He criticized Scalia late last year for comments he made during a hearing on an affirmative action case in which he suggested that underqualified African-American students might benefit from a “slower track school.”

Trump was unreserved in his praise for Scalia on Saturday, however. “The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!” Trump tweeted.

Former Florida Governor Jeb Bush did not immediately address the issue of whether to delay any Supreme Court choice until after the next election, but cited Scalia as a model jurist. 

"I often said he was my favorite justice, because he took the Constitution, and the responsibility of judges to interpret it correctly, with the utmost seriousness," Bush said in a statement. 

Ohio Gov. John Kasich called Scalia “an essential, principled force for conservative thought that is a model for others to follow” in a statement.

A vacancy on the court during the remainder of Obama’s presidency could leave two full Supreme Court sessions deadlocked 4-4. In the case of a tie, the lower court’s decision is upheld, but no Supreme Court precedent is created.

Fourteen high court nominees has been blocked at least in part because of the president's lame duck status, according to CQ. The longest vacancy in history occurred under President John Tyler, who had several nominees fail before his successor, James Polk, succeeded in filling the seat vacated by Henry Baldwin two years earlier.