The stunning death of Supreme Court Justice Antonin Scalia — announced just hours before the six remaining Republican presidential candidates gathered Saturday in South Carolina for a debate — immediately ups the ante in the GOP primary and could well cement the base's commitment to nominating a "true" conservative along the lines of Texas Sen. Ted Cruz.
"We ought to make the 2016 election a referendum on the Supreme Court," Cruz told NBC's Chuck Todd on "Meet the Press" Sunday. "I cannot wait to stand on that debate stage with Hillary Clinton or Bernie Sanders and talk about what the Supreme Court will look like depending on who wins."
As Cruz well knows, there is no issue that so animates the Republican base as appointments to the judicial bench — most notably the Supreme Court. Many conservatives have never forgiven then-President George H.W. Bush for appointing David Souter to the court — only to see Souter turn into a less-than-ideal conservative pick. George W. Bush's 2005 nomination of Harriet Miers was scuttled by conservatives who believed her past record demonstrated a lack of fealty to their principles.
The importance of the court — and of the party of the president who nominates the justices — has been driven home to Republicans even more directly over the past seven years of the Obama administration. In that time, the court has ruled that the Affordable Care Act is constitutional and legalized gay marriage — two rulings that the GOP's conservative base views as betrayals.
In a July 2012 Washington Post-ABC News poll, 61 percent of self-identified conservatives said judicial appointments were extremely or very important to deciding their vote — considerably higher than the 49 percent of the general electorate who said the same. A 2015 Pew Research Center poll showed that 67 percent of conservative Republicans had an unfavorable view of the court.
At a Republican presidential debate in September, Cruz condemned the "out-of-control court." He added: “I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings.” Cruz was far from alone, however, in bashing the court. Even mild-mannered Jeb Bush had harsh words for Chief Justice John Roberts, saying that "he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do."
Cruz, a well-regarded Constitutional lawyer who has argued several cases in front of the Supreme Court, would seem the obvious beneficiary of an even more energized Republican base looking for someone who is committed to standing up and fighting like hell to make sure that the court represents conservative values.
"[Scalia] was an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights," Cruz said in a statement posted on his Facebook page Saturday evening. "All liberty-loving Americans should be in mourning."
As WaPo's Dave Weigel has noted, the death of Scalia and the opening on the court it creates could well cause Donald Trump problems — given his past wishy-washiness regarding the sort of people he would like to see serve on the nation's highest court. Trump showed none of that uncertainty in a tweet mourning Scalia's passing.
The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!
— Donald J. Trump (@realDonaldTrump) February 13, 2016
Mike DuHaime, who served as a top strategist to Chris Christie's 2016 presidential campaign, was more skeptical that Trump would be badly hurt by the aftermath of Scalia's death. "Most of Trump's voters aren't focused on the Supreme Court," he said.
Other 2016 candidates — like Jeb Bush and Marco Rubio — are likely to use the moment of Scalia's death to argue that the stakes of electing a president in November are even higher than they were 24 hours ago, a way of arguing that picking Cruz or Trump, both of whom trail Hillary Clinton in most general election surveys, could have disastrous consequences.
It remains to be seen whether that sort of appeal to electability, which hasn't impacted the rises of Trump and Cruz to date, suddenly becomes an issue that sways persuadable Republican voters in the wake of Scalia's passing.
What is known is that Scalia's death will reshape the fight both for the Republican nomination and the White House in the fall in ways large and small. At first blush, those changes should further move the debate within the GOP into territory where Cruz is both comfortable and compelling.