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Supreme Court Justice Scalia's death throws a wrench in presidential race

| Sunday, Feb. 14, 2016, 10:42 p.m.
U.S. Supreme Court Justice Antonin Scalia at a Federalist Society event in 2014. (Reuters)
REUTERS
U.S. Supreme Court Justice Antonin Scalia at a Federalist Society event in 2014. (Reuters)

Antonin Scalia will be difficult to replace, former Pennsylvania Gov. Dick Thornburgh said.

And not just because his unexpected death Saturday set off a frenzy between Republicans and Democrats who disagree over which president — the current one or the incoming one — should be allowed to appoint his successor on the U.S. Supreme Court.

“I think Nino Scalia would get quite a chuckle over the fact that this turmoil has now developed,” Thornburgh, a longtime friend of Scalia's, said Sunday.

The two men met when they started work at the Department of Justice around the same time during the Ford administration. Thornburgh, a former U.S. Attorney for the Western District of Pennsylvania, served as assistant attorney general overseeing the criminal division, while Scalia was head of the Office of Legal Counsel, essentially working as the president's lawyer.

When Thornburgh was appointed U.S. attorney general in 1988, he asked his old friend, by then a Supreme Court justice, to swear him into office.

“He was always pleasant,” said Thornburgh, 83, of Scalia. “He was a marvelous man, possessed not only of knowledge and integrity, but a good sense of humor and civility.”

Scalia will be remembered for bringing a strong conservative voice to the nation's highest court after years when “openly avowed liberals were in the driver's seat,” Thornburgh said.

“He stuck to his guns, and I think made a lasting imprint on the court by restoring some balance to the court during his tenure,” Thornburgh said. “He'll be missed.”

President Obama said he will nominate a successor, and Senate Republican leaders said they believe a decision should be postponed until there is a new president.

“It's pretty clear that the Constitution confers on the president the right to make an appointment and the right of the Senate to confirm,” Thornburgh said.

“My suspicion is that my Republican friends will seek to delay the appointment until the outcome of the election,” he said. “It could be a long, drawn-out session, and that doesn't bode well from the standpoint of trying to ensure continuity in the court's operations.”

It may not bode well for the presidential election either, experts say.

“The GOP cannot really afford to be the party that stops everything,” said Alison Dagnes, political science professor at Shippensburg University. “(Donald) Trump and (Bernie) Sanders' popularity is often ascribed to people who are sick of the polarization and the politics as usual. And now the GOP leadership is doubling down on the polarization and the politics as usual. That seems to be a tactical error.”

Dagnes said that for all the bluster, Senate Republicans probably will have to take up Obama's justice nomination. If he picks a moderate, a woman or a minority, Republicans will have a very difficult time garnering support for obstruction, she said.

“I can see this blowing up in the Republicans' faces,” said Michael Genovese, political science professor at Loyola Marymount University in Los Angeles.

President Ronald Reagan's final nominee to the court, Anthony Kennedy, was confirmed in the midst of a presidential election while Reagan was a lame duck just like Obama.

“On this one, the Republicans do not have a good leg to stand on — and they know it,” Genovese said. Republicans soon will have to decide: Sit down with the president and agree on a moderate nominee or walk over the cliff, he said.

“In an already very volatile election cycle, the death of Scalia just made it more volatile,” said Jeff Brauer, Keystone College professor of political science. “Now all three branches of the federal government are up for grabs.”

Mark J. Rozell, acting dean and professor at the School of Policy, Government and International Affairs at George Mason University, said, “Obama actually would be doing the Republicans a big favor by putting forth a moderate appointee.

“An acceptable Obama pick removes the politics of court appointments from the campaign and lets the Republicans focus on winning the White House and eventually have some of their own appointments later,” he said.

Genovese noted that the next president is likely to get two nominees, “so the future of the court will be shaped more by the next president than the sitting one.”

A protracted focus on a court confirmation poses a real danger for Republicans, Rozell said.

“Do they want to have a national election heavily focused on social issues and Citizens United? The Republicans need the general election to be about jobs, the economy and security,” he said. “Battling over who gets to name the next member of the court takes them off their big issues and into some politically very dicey territory.”

The Republicans run the danger of looking once again like obstructionists, and that's dangerous when the GOP will be defending Senate seats in states that voted for Obama, Rozell noted.

The Republicans' current strategy is “a big gamble,” he said.

Bruce Haynes, a GOP strategist and Washington-based media consultant, agreed.

“The politics are simple,” Haynes said. “Obama will have a nominee, possibly a minority like Loretta Lynch. Republicans will say no. It is government shutdown politics all over again, and we know where they go.”

Republicans also run the risk of energizing left-leaning female millennial voters who otherwise might be turned off in the general if Hillary Clinton wins the Democratic nomination, he said.

Scalia's death turns both the Republican primary and the general election on its ear, Haynes said:

“In life and in death, Justice Scalia stirs the pot like no one else.”

Elizabeth Behrman and Salena Zito are Tribune-Review staff writers.

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