Behind the political chess game Justice Scalia's death creates

High court vacancy sparks bitter political battle
High court vacancy sparks bitter political battle
Squawk Box Politics
Squawk Box Politics
Battle brewing over Scalia replacement
Battle brewing over Scalia replacement

The sudden passing of Supreme Court Justice Antonin Scalia will not transform President Barack Obama's final year in office or the race to elect his successor. But it will change them.

The effects will be largely subtle and on the margins. The future of a closely divided Supreme Court was always destined to become a significant issue in the presidential campaign this fall. Yet now it will matter sooner, and will ripple across Capitol Hill and the battle for control of the Senate in 2017 as well.

The most immediate impact already became evident in the Republican presidential debate that took place in South Carolina just hours after the stunning news about Justice Scalia broke on Saturday.

It advantaged U.S. Sen. Ted Cruz of Texas, who is both an experienced Supreme Court litigator and is casting himself as the foremost conservative in the Republican race. For next Saturday's primary in South Carolina, one of the most conservative states in the nation, that allows him to make the most persuasive arguments about championing the Scalia legacy that is intensely popular on the right.

In Washington, Senate Majority Leader Mitch McConnell and President Obama immediately opened a contest between immovable object and irresistible force. McConnell vowed not to move forward with the confirmation of any choice the president might make. Obama vowed to nominate someone anyway.

U.S. Supreme Court Justice Antonin Scalia.
Getty Images

That's a contest that, narrowly defined, McConnell should win. He cannot be forced to act. Yet Obama and fellow Democrats can make him pay a price for inaction.

Obama is likely to appoint a new justice with maximum mainstream appeal. Take as an example his old Harvard Law classmate Jane Kelly. She's an Iowan whose nomination to the federal bench was backed by Iowa Republican Sen. Charles Grassley — the chairman of the Senate Judiciary Committee.

The more credibility a nominee has shown in the past among Republicans, the easier it will be for Democrats to make Republicans appear unreasonably partisan by blocking him or her. That would represent an unwelcome burden for incumbent Republican Senators trying to hang on to their seats in November, such as Rob Portman of Ohio. At a time of roiling passions over the Supreme Court's role in issues of morality and culture, Portman has came out in favor of same-sex marriage after his son publicly declared that he is gay.

And those passions, on display once again in the GOP debate over the weekend, pose dangers for the Republican nominee in the fall campaign. The prospect of a new justice tipping the balance of a court now split 4-4 between those leaning left and right pits the desires of the conservative Republican base against broad shifts in public opinion away from the GOP.

"Our culture's in trouble," U.S. Sen. Marco Rubio of Florida said. "Wrong is considered right and right in considered wrong."

Then he vowed, "We're going to be a country that says life begins at conception and deserves protection of our laws. We're going to be a country that says marriage is between one man and one woman."

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Those are popular views among South Carolina Republicans, but not among the majority of Americans. The more the pressures of the primary campaign lead candidates like Rubio to emphasize them, the more difficult it will be for them to win the election in November.

Those issues also hand a tool to former Secretary of State Hillary Clinton. She has struggled mightily to arouse enthusiasm among younger voters, including younger female voters. A threat to legal rights those voters now take for granted may make it easier to rally them.