US Supreme Court vacancy upends presidential race

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What Justice Scalia's Death Could Mean for the Court Moving Forward

WASHINGTON (Reuters) -- The sudden and shocking death of U.S. Supreme Court Justice Antonin Scalia opened a new and incendiary front in the already red-hot 2016 presidential race, one that promises to divide Democrats and Republicans and, perhaps, Republicans from themselves.

READ MORE: Supreme Court Justice Antonin Scalia dead at 79

The vacancy on the court, which is now evenly split 4-4 between its conservative and liberal wings, had Republicans calling on President Barack Obama to refrain from choosing a successor to the right-leaning Scalia while Democrats urged Obama to do as the U.S. Constitution requires and put forward a candidate to face confirmation in an albeit hostile Senate.

More on the life of Justice Scalia:

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US Supreme Court vacancy upends presidential race
FILE - In this Nov. 6, 2014 file photo Supreme Court Justice Antonin Scalia speaks in Washington. Scalia is joining the debate over the Senate's torture report by saying itâs hard to rule out the use of extreme measures to extract information if millions of lives were threatened. Scalia told a Swiss broadcast network that American and European liberals who say such tactics may never be used are being self-righteous. (AP Photo/Kevin Wolf, File)
WASHINGTON - FEBRUARY 21: United States Supreme Court Associate Justice Antonin Scalia (R) arrives at the American Enterprise Institue February 21, 2006 in Washington, DC. Justice Scalia delivered the keynote address about foreign law and the debate about how it is used in American Law during the seminar called 'Outsourcing Of American Law.' (Photo by Chip Somodevilla/Getty Images)
NEW YORK - OCTOBER 10: Supreme Court Justice Antonin Scalia walks October 10, 2005 in the annual Columbus Day Parade in New York City. This is the 61st Columbus Parade which celebrates both the explorer and Italian cultural influence on America. (Photo by Spencer Platt/Getty Images)
PHILADELPHIA - APRIL 29: U.S. Supreme Court Associate Justice Antonin Scalia addresses the Philadelphia Bar Association during a luncheon April 29, 2004 in Philadelphia, Pennsylvania. Scalia presented the first Antonin Scalia Award to Philadelphia lawyer and former American Bar President Jerome J. Shestack. Scalia is the third U.S. Supreme Court Justice to Address the Philadelphia Bar Association members in less than a year. (Photo by William Thomas Cain/Getty Images)
WASHINGTON, UNITED STATES: US Supreme Court Justice Antonin Scalia (L) attends inaugural ceremonies 20 January 2w005 on Capitol Hill in Washington, DC. US President George W. Bush was sworn in for a second term in a solemn ceremony held under unprecedented security on the steps of the US Capitol. (Photo credit should read TIMOTHY A.CLARY/AFP/Getty Images)
ANN ARBOR, MI - JANUARY 25: U.S. Supreme Court Justice Antonin Scalia speaks at the fifth annual Ava Maria School of Law lecture January 25, 2005 on the University of Michigan campus in Ann Arbor, Michigan. Scalia talked about religion and U.S. Constitution. (Photo by Bill Pugliano/Getty Images)
384802 07: (FILE PHOTO) This undated file photo shows Justice Antonin Scalia of the Supreme Court of the United States in Washington, DC. (Photo by Liaison)
382727 01: U.S. Supreme Court Justice Antonin Scalia talks with opera star Placido Domingo at a gala opening night dinner following a Washington Opera performance Oct 21, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
382727 17: U.S. Supreme Court Justice Antonin Scalia looks at a painting during an opening at the National Gallery of Art September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
371151 07: Louis Freeh, Director of the Federal Bureau of Investigation, left, and Supreme Court Justice Antonin Scalia applaud during the Mass of Installation for Archbishop Edward Egan June 19, 2000 at St. Patrick''s Cathedral in New York. (Photo by Chris Hondros/Newsmakers)
382727 05: U.S. Supreme Court Justice Antonin Scalia attends a National Gallery of Art opening ceremony September 27, 2000 in Washington, D.C. (Photo by Karin Cooper/Liaison)
WASHINGTON - APRIL 29: (L-R) Supreme Court Justice Antonin Scalia, Jason Binn, and Charles Merinoff inside the Correspondent's After Party hosted by Capitol File Magazine on April 29, 2006 in Washington, DC. (Photo by Nancy Ostertag/Getty Images)
Associate Justice Antonin Scalia joins the members of the Supreme Court for photos during a group portrait session, at the Supreme Court Building in Washington, Monday, Oct. 31, 2005. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat Sept. 26, 1986. (AP Photo/J. Scott Applewhite)
Members of the U.S. Supreme Court pose for a formal portrait in Washington, April 15, 1988. From left, front row are: Associate Justices Thurgood Marshall; William Brennan, Jr.; Chief Justice William Rehnquist; Byron White; and Harry Blackmun. Back row from left are: Antonin Scalia; John Paul Stevens; Sandra Day O'Connor; and the court's newest member, Anthony M. Kennedy. (AP Photo/Bob Daugherty)
Supreme Court Justice Antonin Scalia administers the oath of allegiance to new citizens, during a ceremony commemorating the 150th anniversary of the dedication of the Soldiersâ National Cemetery and President Abraham Lincoln's Gettysburg Address, Tuesday, Nov. 19, 2013, in Gettysburg, Pa. Lincoln's speech was first delivered in Gettysburg nearly five months after the major battle that left tens of thousands of men wounded, dead or missing. (AP Photo/Matt Rourke)
U.S. Supreme Court Justice Antonin Scalia jokes about his experiences as a law student at a program with fellow Justice Elena Kagan, Monday, Dec. 15, 2014 at the University of Mississippi in Oxford, Miss. Both justices spoke to an open audience of professionals, professors, students and area residents about their law school and professional experiences as well as some of their court decisions. (AP Photo/Rogelio V. Solis)
U.S. Supreme Court Justice Antonin Scalia gives the keynote speech at the Snake River Adjudication celebration dinner at the Boise Center on the Grove in Boise, Idaho, on Monday, Aug. 25, 2014. (AP Photo/Otto Kitsinger)
Supreme Court Justice Antonin Scalia stands at the edge of the stage after a question and answer session delivered as part of a lecture series at Tufts University, Wednesday, Oct. 2, 2013, in Medford, Mass. Scalia, who has served on the nation's highest court since 1986 following a nomination by President Ronald Reagan, spoke about interpreting the U.S. Constitution. (AP Photo/Josh Reynolds)
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The prospect of such a battle drew swift and furious comment from candidates vying to be elected president in November.

Facing off in a debate only hours after the 79-year-old Scalia's death was announced, some Republican presidential candidates seized the moment to caution voters that their party's front-runner, billionaire businessman Donald Trump, could not be trusted to nominate a stalwart conservative.

"If Donald Trump is president, he will appoint liberals," charged U.S. Senator Ted Cruz of Texas during the debate in South Carolina, which holds a Republican nominating contest next Saturday.

"Two branches of government hang in the balance, not just the presidency, but the Supreme Court," Cruz said. "If we get this wrong, if we nominate the wrong candidate, the Second Amendment, life, marriage, religious liberty, every one of those hangs in the balance."

Senator Lindsey Graham of South Carolina also took a shot at Trump. "Donald Trump is not a conservative, so I don't trust him to pick a judge," Graham said before the debate. A real estate mogul, Trump has supported Democratic politicians in the past.

Trump, who also has taken several positions at odds with Republican orthodoxy, joined other candidates at the debate in insisting that Senator Mitch McConnell, Republican majority leader in the Senate, stand by his promise to block any Obama high court choice.

"It's up to Mitch McConnell and everyone else to stop it," Trump, a former reality TV show host, said. "It's called delay, delay, delay."

Under the U.S. system, the president nominates justices for the nine-member court and the Senate confirms them. The last justice to be approved by the Senate of the opposite party during an election year was Justice Anthony Kennedy in 1988.

Obama has already indicated that he intends to send a choice to the Senate in coming weeks, meaning that the nominee will be heavily scrutinized by presidential candidates in both parties -- and more than likely be opposed by the majority of Republicans.

"The court may genuinely be a major issue this year," said David Axelrod, a former top political adviser to Obama. "It will be a hell of a fight."

More reaction to Scalia's death:

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REACTION Scalia
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US Supreme Court vacancy upends presidential race
The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!
My statement on the passing of Supreme Court Justice Antonin Scalia: https://t.co/vxgIicZxYy
Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.
#Scalia death thrusts the Supreme Court 2016 presidential contest - if the Senate won't confirm an Obama pick, kicks to POTUS 45 #GOPDebate
Justice Scalia was a defender of the constitution, an important conservative voice in the court. He will be missed. https://t.co/cOB3juvx7A
Devastating lose of Justice Scalia. A legal giant who steered the Supreme Court onto the Constitution. God Bless him.
God bless Anthony Scalia, finest Sup Ct Justice RIP
Sorry to hear of the sudden passing of Judge #Scalia, a strong and conservative voice on the SCOTUS.
Antonin Scalia was a leader, a protector of our constitutional rights. His influence will be missed. Our prayers are with his family.
My prayers are with the family of #JusticeScalia.
A great light has gone out. Justice Scalia was a great protector of freedom & liberty. He will be missed.
#RIP Justice Antonin Scalia, one of the greatest constitutional scholars to ever serve #US on the bench. Thoughts are with his family.
I'm very sorry to learn of the passing of Justice Antonin Scalia - a defender of the Constitution and a dedicated public servant.
I offer my condolences to the family of Justice Scalia. The nation is grateful for his nearly 30 years of service on the Supreme Court.
Saddened by the loss of Justice Antonin Scalia. He proudly served our country & defended our Constitution. My prayers are with his family.
Very sad to hear of Justice Antonin Scalia's death today. He will be missed as a champion of the Constitution and rule of law. #SCOTUS
My thoughts are with Justice Scalia's family. Though I didn't share his philosophy, I admired his patriotism.
Jeanette & I mourn the loss of Justice Scalia, and our thoughts & prayers are with his wife Maureen & his family. https://t.co/e03KRZRM6q
My thoughts and prayers are with Justice Scalia's family and his colleagues on the court who mourn his passing. https://t.co/Y51xUMMEId
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SOCIAL ISSUES ON DOCKET

Criticism of the court, which in recent years has upheld Obama's sweeping healthcare plan and legalized same-sex marriage, has already been a thread running through several Republican candidates' campaigns.

The conservative majority on the court had appeared poised to invalidate Obama's immigration and climate-change policies. The loss of Scalia, considered to be a lodestar of conservative legal thought, and the potential swing of the court to the left, ensures that whatever drama plays out in the Senate this year will be mirrored on the campaign trail.

"There is no more clarifying debate in politics these days than when it comes to Supreme Court nominees," said Jim Manley, a Democratic strategist and former aide to Senator Harry Reid of Nevada. "This now is for all the marbles."

Reid was majority leader of the Senate when it confirmed previous Obama court nominees Sonia Sotomayor and Elena Kagan. Manley called McConnell's threat not to allow a vote on a potential Scalia replacement "completely beyond the pale."

Democratic candidate Hillary Clinton seemed inclined to make McConnell's threat a campaign issue.

"The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia's seat to remain vacant dishonor our Constitution," Clinton said in a statement.

Axelrod said that the issue could help Clinton, locked in a tight race with U.S. Senator Bernie Sanders of Vermont.

"I think it will make electability and experience in this realm more important," he said.

Scenes outside the Supreme Court:

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Supreme Court - flag at half mast for Antonin Scalia - SCOTUS
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US Supreme Court vacancy upends presidential race
A candle is seen at the steps of the US Supreme Court February 13, 2016 in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia. Scalia, a fiery conservative who helped shape American legal thought, was first appointed to the highest court in the land in 1986 by President Ronald Reagan, making him the first Italian-American to serve there. Scalia was 79. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
A worship announcement is posted in front of the United Methodist Building across the street from the U.S. Supreme Court in Washington where the flag flies at half-staff in honor of the passing of Supreme Court Justice Antonin Scalia, Saturday, Feb. 13, 2016. (AP Photo/J. David Ake)
A U.S. flag flies at half-staff in front of the U.S. Supreme Court in Washington Saturday, Feb. 13, 2016, after is was announced that Supreme Court Justice Antonin Scalia, 79, had died. (AP Photo/J. David Ake)
A flag at the US Supreme Court is lowered to half staff February 13, 2016 in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia. Scalia, a fiery conservative who helped shape American legal thought, was first appointed to the highest court in the land in 1986 by President Ronald Reagan, making him the first Italian-American to serve there. Scalia was 79. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
WASHINGTON, DC - FEBRUARY 13: The American flag flies at half mast at the U.S. Supreme Court February 13, 2016 in Washington, DC. Supreme Court Justice Antonin Scalia was at a Texas Ranch Saturday morning when he died at the age of 79. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - FEBRUARY 13: A young man places a candle light in front of the U.S. Supreme Court in Washington, D.C., February 13, 2016, after the death of Supreme Court Justice Antonin Scalia. Scalia died today on a ranch near San Antonio, TX. He was 79. (Photo by Astrid Riecken For The Washington Post via Getty Images)
The US Supreme Court is seen February 13, 2016 in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia. Scalia, a fiery conservative who helped shape American legal thought, was first appointed to the highest court in the land in 1986 by President Ronald Reagan, making him the first Italian-American to serve there. Scalia was 79. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
A view of the US Capitol from the Supreme Court February 13, 2016 in Washington, DC. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
A view of the US Supreme Court on February 13, 2016 in Washington, DC. Supreme Court Justice Antonin Scalia, a fiery conservative who helped shape American legal thought, died on February 13, 2016. He was 79. Scalia, the longest-serving justice on the high court, died in his sleep while on a hunting trip in Texas, local media reported. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
The US Capitol is seen from US Supreme Court February 13, 2016 in Washington, DC. US Supreme Court Justice Antonin Scalia, who helped shape the legal thought of his time, has died, the governor of his home state of Texas confirmed Saturday, February 13, 2016. He was 79. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
The US Supreme Court is seen February 13, 2016 in Washington, DC, following the announcement of the death of Supreme Court Justice Antonin Scalia. Scalia, a fiery conservative who helped shape American legal thought, was first appointed to the highest court in the land in 1986 by President Ronald Reagan, making him the first Italian-American to serve there. Scalia was 79. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
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OBAMA'S OPTIONS

Rick Hasen, a law professor at the University of California, Irvine, and a longtime observer of the Supreme Court nomination process, said Obama likely has two options.

"He could nominate a more liberal candidate who would have no real chance of getting through a Republican Senate - in which case this would become a salient political issue in 2016," Hasen said. Or he could nominate a more moderate candidate who might gain enough Republican support to gain approval, he said.

There are risks to both approaches: A Republican obstruction of a liberal nominee would animate the Democratic Party's progressive base in an election year but would leave the court without a potentially tie-breaking vote for perhaps a year.

That same Democratic base might view a moderate nominee as a betrayal, while conservative Republican voters likely would frown on any senator who voted to approve an Obama choice.

Manley said that McConnell has already shown that he is unwilling to support any choice made by Obama and that the White House must act aggressively. "The president should go forward and nominate the most liberal candidate possible," he said.

Given the need to fire up its most passionate voters, that might just be exactly what Republican candidates want as well.

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