"In the Supreme Court, because of his passing, there will be most likely a tie, four to four, on important issues that affect so many people in our country. And the most important is the decision about President Obama’s actions under DACA and DAPA," Clinton said, referring to the pending cases about executive power to protect some classes of immigrants.
The Senate must not shirk its constitutional duty to consider the candidate Obama names to replace Scalia, politics aside, Clinton said. Scalia was the intellectual leader of the court's conservative wing, and a liberal replacement could tip the court's balance.
Senate Majority Leader Mitch McConnell (R-Ky.) has said he does not want the Senate to act on a nominee until after the presidential election in November, a delay that Clinton had said Saturday would be nakedly partisan and unconscionable.
Scalia's death leaves the court with four justices who are very or somewhat conservative and four who are more liberal. The court can continue to hear and decide cases with only eight justices, but if they tie on a vote their options are to let the lower court's decision stand or hold the case over until the Senate confirms a ninth justice.
Immigrants including "Dreamers," the children of illegal immigrants brought to the United States as minors, cannot afford to wait for a decision about their fate, Clinton said Sunday. The high court had agreed last month to hear challenges to the DREAM Act and other Obama executive actions granting a reprieve from deportation. A decision had been expected by the end of June.
"If there is no new justice appointed, then as with other cases before the court, the decision that was decided will stay in place," Clinton said. "And that was a bad decision. I disagreed with it. I don’t think it was the right legal interpretation, I believe President Obama had the authority to do what he did."
"So this is a very important issue and as many of you are already working in my campaign, I want people to know this, too: We have a president, he was elected, he has the right to nominate another Supreme Court justice,” she said.
Her remarks echoed a tirade against McConnell at a Democratic Party dinner Saturday night in Colorado. There, Clinton made a last-minute decision to abandon milder language on the subject of a high court replacement when aides told her of the majority leader's remarks.
McConnell said in a statement Saturday that Scalia's seat should not be filled now because it is the final year of the president's term. McConnell determines the Senate schedule, meaning he could prevent the Senate from taking up any nomination Obama sends to the chamber.
“The American people should have a voice in the selection of their next Supreme Court justice," McConnell's statement said. "This vacancy should not be filled until we have a new president.”
If a Republican is elected president, that would set up the possibility of another conservative jurist filling the vacancy. Republicans hope to preserve their majority in the Senate in the same election.
Senate Minority Leader Harry M. Reid (D-Nev.) said postponing consideration of an Obama choice would be "a shameful abdication" of the Senate's duty.
In Nevada, where the state's population is about one-quarter Hispanic, Clinton said she was grateful to have the support of Dreamers. Clinton and rival Bernie Sanders are neck and neck in Nevada going into the Democratic caucus on Saturday.
“I want to do everything I possibly can to make sure you have the opportunity and the right to live your lives in this country, to contribute your skills, your hard work to building a better future for all of us," Clinton said. "And that’s why I’m so privileged to have their support, but I’m also honored, deeply honored to have their support”
Obama has repeatedly acted on his own, using the executive power of the presidency, to go around the Republican-led Congress. The White House argues that his executive actions on immigration, taken in lieu of a comprehensive immigration overhaul in Congress, are within the normal powers of a president.