Wednesday

September 19th, 2018

National

Why death of Scalia poses new risks for Trump

David Weigel

By David Weigel

Published Feb. 15, 2016

Flag flies at half mast at U.S. High Court.

WASHINGTON - The passing of the Supreme Court's iconic and longest-serving strict constructionist with 11 months left in President Obama's term may roil the race for president -- and no candidate may be affected quite like Donald Trump. The Republican front-runner has been impossible to pin down on questions about the high court, in a way his rivals may be able to exploit.

They tried in 2015. In an August interview with Bloomberg Politics's Mark Halperin and John Heilemann, Trump punted on a question about who he'd appoint to a Supreme Court vacancy. He suggested his sister, Maryanne Trump Barry, a federal judge, before joking that he'd have to "rule it out" for the same nepotistic reasons that it occurred to him.

Ramesh Ponnuru, the conservative columnist for National Review and Bloomberg View, quickly noted that Trump had just recommended a pro-choice jurist, a defender of abortion at any point in a pregnancy. Jeb Bush's campaign briefly promoted Ponnuru's article, but the issue was lost in the "Summer of Trump."

Trump did not revisit the issue or the question. Today, he was among the first Republicans to react to Scalia's death, with fulsome praise for his legacy.

"I would like to offer my sincerest condolences to the Scalia family after the passing of Justice Scalia," Trump said. "Justice Scalia was a remarkable person and a brilliant Supreme Court Justice, one of the best of all time. His career was defined by his reverence for the Constitution and his legacy of protecting Americans' most cherished freedoms. He was a Justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country. My thoughts and prayers are with his family during this time."

But in December, after what would turn out to be the last media furor caused by a Scalia opinion, Trump was critical of the justice. Scalia had waded into the debate over whether affirmative action actually hurts black students, by placing some of them in schools where they struggle.

"I thought his remarks were very, very tough," Trump told CNN's Jake Tapper. "I think they were very, very tough to the African American community actually. I don't like what he said, no."

Those remarks, again, bothered elements of the conservative movement without going viral. Today's news elevates the issue of court appointments like nothing else could, and other candidates are simply more adroit than Trump in talking about this.

Sen. Ted Cruz, R-Texas, who clerked for then-Chief Justice William Rehnquist, frequently tells audiences that the court is "one vote away" from obliterating laws that restrict abortion or protect religious liberty. With some conservative audiences, he has slowly walked through the processes that put David Souter and John Roberts on the court, warning them that spineless, political presidents refused to fight for reliable strict constructionists and instead nominated men who could sail through the Senate. Even Jeb Bush has (gently) criticized his father's decision to put Souter on the court.

Up to now, Republican attacks on Trump's view of abortion and eminent domain have failed to seriously wound him. But with just hours before the debate, the last before a highly conservative South Carolina electorate holds its primary, moderators and rivals have a chance to goad Trump into a mistake.

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