With the sudden death of Justice Antonin Scalia, the selection of nominees for the Supreme Court has once again been thrust into the center of the race for the White House. In one sense, it is disappointing that it took a shock like this to focus the electorate’s attention on what may be the single most important Presidential duty. But on an even deeper level, it is tragic that the Supreme Court has acquired so much power that the nomination fights have become the paramount political battles of our present age.

The reader will recall that Matthew Lee Anderson, Jake Meador, and Matthew Loftus took to these “pages” and decried not only the primary support received by Donald Trump and Ted Cruz, but also the very essence of the Cruz campaign. Anderson went so far as to swear off supporting Cruz in a general election against the Democratic nominee, a position Meador and Loftus subsequently defended. In the comments, many readers objected that surely the fact that Ted Cruz would advance better nominees for the Supreme Court than any Democrat, was reason enough to justify consistent Christian conservatives supporting Cruz in the general election. Justice Scalia’s passing demands that we examine this argument more closely.

The Current Nomination Crisis

When Justice Scalia passed, I was immediately struck by twin emotional responses. The first was grief at the loss of a man who was simultaneously a true giant of the American judicial system and an ideological hero of so many conservative students of the law (myself included). Much has already been said to honor his legacy, and I am ill-equipped to add anything of value to those praises, but the fact of the matter is the extent of his influence cannot be overstated. Yet, along with these reflections, I was also immediately struck with foreboding at the gravity of the political moment: the critical fifth vote for so many constitutional issues could swing dramatically to the left. Suddenly one of the most pivotal turning points in American political history had been added into the 2016 campaign. Somehow, the crazy political cycle that had brought The Sanders and Trump Show to the fore was about to be upstaged by the partisan political equivalent of World War III.

The history of Supreme Court nominations is a story of punctuated equilibrium. Due to happy political accident, there has not been a single vacancy on the Supreme Court while the Presidency and Senate were controlled by different parties since Nirvana released Nevermind in 1991. This streak was sure to end sooner or later. Additionally, none of the previous six vacancies would have seriously altered the ideological balance of the Court, while an Obama nominee replacing Scalia would be a massive change. True, Clinton’s replacing White with Ginsburg in 1993 and Bush replacing O’Connor with Alito in 2005 were small shifts to the left and the right, respectively; however, not since the Thomas nomination has any shift of this magnitude been possible.

Of course, this political analysis is in its own sense tragic. If courts were only adjudicating disputes and construing statutes and constitutional provisions based on the text in front of them, the identity of the justices fulfilling this role in our system would be much less significant. However, this kind of jurisprudential modesty championed by Justice Scalia never attracted a majority on the Court at any point in his lifetime.

Still, analyzing the Court on partisan lines gives an incomplete picture. The Supreme Court has long had “Republican” majorities. The last time there were five Democrat nominees serving on the Supreme Court at the same time, man had not yet walked on the moon. But while no recent Democrat nominees ascribe to Justice Scalia’s jurisprudential modesty, the Republican nominees have been something of a mixed bag. While about half have been stalwart conservatives, some GOP nominees have swung far left (Souter, Stevens), and others have cultivated the swing vote persona (O’Connor, Kennedy). If a judicial conservative would have replaced either Justice Kennedy or one of the two Clinton appointees, there was a chance that Justice Scalia’s vision of jurisprudence would have begun to come to the fore in more majority opinions.

However, if Justice Scalia were replaced by a 50-something Obama appointee such a shift would be foreclosed. It would also mean that Democrat Justices would not even need to convince Justice Kennedy to join them. Instead, they would for the foreseeable future have a majority voting bloc that—according to their own judicial philosophy—they would feel free using to radically transform society.

In short, as Justice “Swing Vote” Kennedy has already given the left their victories on abortion and gay marriage cases, those issues are not actually in play with Justice Scalia’s replacement. Instead, it is the cases where Justice Kennedy has joined with the four judicial conservatives where the outcomes may change. Cases involving issues like free speech, religious liberty, and unconstitutional regulatory overreach are where the difference would be most immediately felt. With this in mind, I actually believe that the Republican Senate majority will be encouraged by both their social conservative activist base as well as their Chamber of Commerce donor base to hold the line against confirming any Obama appointee. And if the Senate stands firm, then the next President will almost certainly have a massive role in reshaping the Court for the coming decades.

Voting for President for the Sake of the Court

Which brings us back to the GOP primaries. Supreme Court nominations have long been an issue that has driven Republican voters to the polls and this effect should be amplified by the death of Justice Scalia. Moreover, ensuring a good replacement Justice could depend on who emerges among the top three Republican contenders. Trump, Cruz, and Rubio are not equally good bets.

As with every other issue of substance, Donald Trump has been all over the place. On the one hand, he has praised his sister, Judge Maryanne Berry, who when she served on the Third Circuit Court of Appeals wrote a strident opinion rejecting a partial birth abortion ban as a desperate attempt to undermine Roe vs. Wade. However, in the most recent debate, Trump named Diane Sykes and Bill Pryor, two conservative favorites, as his potential nominees. He could very possibly pick “tremendous” justices or he could make a “YUUUUUUGE” mistake.

In contrast, Ted Cruz is a sure thing. As a former Supreme Court clerk, Cruz would almost certainly nominate judicial conservatives of the highest caliber and would not shrink from any of the knock-down, drag-out confirmation battles. Cruz’s fans, encouraged by his top three finishes in each of the first three states, are sure to continue to highlight this issue as he fights towards the nomination.

Marco Rubio’s case on judges is a little weaker than Cruz’s but it is far stronger than Trump’s. It may be unfair to call Rubio an “establishment” candidate, but he is certainly a much more traditional adviser-managed candidate than either Trump or Cruz. Accordingly, there is a small chance that his advisers will tell him that he needs to put forward a so-called stealth candidate who could explode in his face the way Justice Souter did for George H.W. Bush. Indeed, several Rubio supporters I know have acknowledged that they would trust this duty to Cruz over Rubio, but think that Cruz will lose to the Democrat while Rubio will win.

In sum, its hard to pick a clear best course of action for those concerned about the future direction of the Court. If I had to assign semi-arbitrary odds that each candidate would successfully nominate a Scalia-style Justice to the Court once elected president, I would give Cruz 99.5 percent, Rubio 95 percent, Trump 40 percent, Hillary zero percent, and Sanders zero percent. But, the general election viability question certainly complicates the strategic decisions facing voters in the coming primary elections.

When we get to the general election, it will be much less complicated. Judges are one key reason why I disagree with those who say that their Christian convictions will prevent them from voting for either Trump or Cruz in the general election should one of them capture the GOP nomination. As much as I may disapprove of Trump’s personal character and policy positions (and I do on both counts), there is a chance that he will nominate someone good to the Supreme Court. With either Democrat, that will simply not be the case.

Conservatives may face a difficult choice this November. The character of the Republican nominee may be such that it may be tempting to abstain on principle. However, when it comes to the future of the Supreme Court, the choice will be a simple matter of math: R > D.

Featured image via: https://commons.wikimedia.org/wiki/File:Justice_Antonin_Scalia_Speaks_with_Staff_at_the_U.S._Mission_in_Geneva_(2).jpg

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Posted by Keith Miller

Keith Miller is an Assistant Solicitor General in the Federalism Unit of the Arizona Attorney General's Office. He is married and has four children. You can follow him on Twitter.