(Bloomberg) — The death of conservative icon and Supreme Court Justice Antonin Scalia may have united Republicans in the goal of preventing President Barack Obama from picking his successor.
But within hours, the party’s presidential candidates began using the battle to tear each other apart ahead of the Feb. 20 South Carolina primary.
On Monday, Texas Sen. Ted Cruz released a TV ad called “Supreme Trust” attacking Republican front-runner Donald Trump as untrustworthy when it comes to picking justices.
“Life. Marriage. Religious liberty. The Second Amendment. We’re just one Supreme Court justice away from losing them all,” a narrator says to ominous music and shots of the Supreme Court building.
It then flips to a now-infamous Trump interview from 1999 in which he says he’s “very pro-choice” and wouldn’t outlaw late-term abortion.
“We cannot trust Donald Trump with these serious decisions,” the narrator says.
Trump, for his part, is using the issue to attack Cruz for supporting the 2005 nomination of John Roberts in his capacity as an official in President George W. Bush’s administration. After becoming U.S. chief justice, Roberts disappointed conservatives by voting to uphold Obamacare in 2012 and 2015 against lawsuits designed to cripple the law.
“Ted Cruz told your brother that he wanted John Roberts to be on the United States Supreme Court,” Trump said in a Saturday debate exchange with Jeb Bush, the brother of the former president. “They both pushed him, he twice approved Obamacare.”
Cruz responded, “I did not nominate John Roberts. I would not have nominated John Roberts.” (The Texan has criticized Roberts for his 2015 vote on the Patient Protection and Affordable Care Act (PPACA).)
Trump went after his rivals again Sunday, writing on Twitter: “Ted Cruz, along with Jeb Bush, pushed Justice John Roberts onto the Supreme Court. Roberts could have killed ObamaCare twice, but didn’t!”
Trump is also under renewed fire from conservatives for telling Bloomberg Politics last year that his sister would be a “phenomenal” justice. Maryanne Trump Barry, a judge on the 3rd U.S. Circuit Court of Appeals, has drawn heavy criticism on the right for a past decision that protected legal late-term abortion.
The New York businessman sought to clean up those comments Sunday.
“I said it jokingly. My sister’s a brilliant person, known as a brilliant person, but it’s obviously a conflict,” Trump said on ABC’s This Week. “And I said, oh, how about my sister? Kiddingly. My sister, also, she also happens to have a little bit different views than me, but I said that in a very joking matter, and it was all lots of fun and everything else.”
Meanwhile, Bush’s campaign is using the occasion to revive his attack on Florida Sen. Marco Rubio’s spotty attendance record in the Senate.
“As Governor Bush has said multiple times, it is incumbent on the Republican Senate to block whatever liberal, activist judge President Obama nominates,” Bush spokeswoman Kristy Campbell said in an e-mail. “The real question is, with his abominable record of missing votes, can Marco Rubio even be trusted to show up to work to block President Obama’s liberal Supreme Court nominee?”
The battle looms large in the 2016 race as Scalia’s replacement could tilt the fragile 5-to-4 balance of the Supreme Court on monumental issues such as voting rights, gun rights, and campaign finance. Senate Majority Leader Mitch McConnell, a Kentucky Republican, has vowed to wait until after the 2016 election to fill the vacancy. Democrats, including presidential candidates Hillary Clinton and Bernie Sanders, are preparing to fight to get a successor confirmed.
A CBS News survey of Republican and independent voters who watched the Saturday debate found that Republicans trust Cruz (17 percent) most to pick Supreme Court justices. Trump (16 percent), Rubio (13 percent), and Ohio Gov. John Kasich (12 percent) weren’t far behind.
While Scalia’s death at age 79 raises the Supreme Court stakes for the election, they remain jarringly high even if Obama manages to fill the vacancy. As of Election Day, Justice Ruth Bader Ginsburg will be 83, Justice Anthony Kennedy will be 80, and Justice Stephen Breyer will be 78.
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