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Scalia yet to lie in state but battle over his successor already heating up

AFP-JIJI/AP

The sudden death of Justice Antonin Scalia, a towering conservative icon on the U.S. Supreme Court, has set off an epic election-year battle over his successor that will shape American life far into the future.

Scalia died in his sleep at age 79, leaving what has been a conservative-dominated court evenly divided in a year of blockbuster cases — on abortion, affirmative action, immigration, and President Barack Obama’s health care law.

The news sent a shock wave through the race for the White House, as Republican and Democratic candidates absorbed the implications of the surprise, potentially course-altering opening on the court.

“I think last night with the passing of Justice Scalia, we are reminded of how important this election is, how high the stakes are and why we must win,” Sen. Marco Rubio, in a bitter fight for the Republican nomination, told “Fox News Sunday.”

Firing the first shot in the succession battle, Obama said he would exercise his “constitutional responsibilities” and name a successor.

Leading Republicans — including all six conservative White House contenders — threatened to block any nomination Obama puts forth, arguing that it should be left to the next president to fill Scalia’s vacant seat.

Republicans contended that no president in 80 years has nominated a Supreme Court Justice in his final year in office.

But Justice Anthony Kennedy, nominated by Ronald Reagan, was confirmed in 1988, an election year.

Obama called on the Senate to give his nominee a “fair hearing and a timely vote.”

“These are responsibilities that I take seriously as should everyone,” Obama said. “They’re bigger than any one party. They are about our democracy.”

The president nominates Supreme Court candidates, but Senate approval is required for them to take up the lifetime post, which has led to some viciously fought nomination battles.

Obama ordered flags to fly at half-staff across the United States to mark Scalia’s passing, praising him as “one of the towering legal figures of our time.”

Scalia died at a private residence in the Big Bend area of West Texas, according to the U.S. Marshals Service.

“For almost 30 years, Justice Antonin Scalia was a larger than life presence on the bench, a brilliant legal mind with an energetic style,” Obama told reporters in Rancho Mirage, California.

Appointed to the Supreme Court by Reagan in 1986, he championed “originalism,” the legal theory that the Constitution should be interpreted strictly in the light of the times it was written, in 1788.

In this view, the validity of the death penalty and the right to bear arms is unquestionable.

A devout Catholic who had nine children, Scalia derided abortion and same-sex marriage as new rights that would have been unfathomable to the writers of the Constitution.

Brilliant, witty and scathing in his opinions, he was known as much for his slashing dissents as his majority opinions.

Scalia “was a bad boy on the bench who certainly never wrote a bad sentence,” his biographer, journalist Joan Biskupic, said Sunday on CNN.

To the surprise of some, the portly, affable Scalia was able to separate his legal opinions from his personal relations, celebrating New Years each year with liberal Justice Ruth Bader Ginsberg and taking the newest justice, Elena Kagan, skeet shooting.

His death’s impact on the court will be immediate even though the succession struggle will take time to play out, court watchers say.

With a 5-4 conservative majority, the court had recently stalled key efforts by Obama’s administration on climate change and immigration.

Now, with the court split 4-4, lower court rulings will be upheld in cases that end with a tied decision, thereby blunting the conservatives hold.

This term is stacked high with hot button issues, including the first abortion case since 2007 — a review of restrictions imposed by the state of Texas on abortion clinics.

The court also will decide whether Obama has the authority as president to protect millions of illegal immigrants from deportation, as well as a challenge by religious groups to his signature Affordable Care Act.

Another case involves whether race and ethnicity can be used in deciding college admissions.

Republican leaders immediately took up the cry against an Obama nomination to the court, setting the stage for a bruising election year fight.

“The American people should have a voice in the selection of their next Supreme Court justice,” said Senate Republican Majority Leader Mitch McConnell. “Therefore, this vacancy should not be filled until we have a new president.”

McConnell’s Democratic counterpart, Harry Reid, pressed for Obama to send a nominee to the Senate “right away,” stressing that a yearlong vacancy — raising the prospect of 4 to 4 splits on major issues — would be “unprecedented.”

“Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities,” Reid said.

Democratic White House hopeful Hillary Clinton said Republicans calling for a delay “dishonor our Constitution.”

Her Democratic rival, Bernie Sanders, insisted a “full contingent” was needed on the Supreme Court.

“They’re dealing with enormously important issues,” he said on “Fox News Sunday.” “Let’s get on with that business.”

On the debate stage in South Carolina Saturday night, all six Republican presidential contenders bowed their heads in silence to honor the late justice — and united to oppose Obama nominating his successor.

Republican front-runner Donald Trump said he fully expects Obama to nominate a justice — and said it was up to Senate Republicans to “delay, delay, delay.”

A procession of law enforcement officers early Sunday escorted the body of Scalia to a funeral home in El Paso, Texas, where officials are waiting to hear whether an autopsy will be performed.

Chris Lujan, a manager for Sunset Funeral Homes, said about 20 law enforcement officers arrived early Sunday morning at the funeral home. The procession traveled more than three hours from the West Texas resort ranch where Scalia, 79, was found dead in his room Saturday morning. Lujan said if an autopsy is requested by Scalia’s family or ordered by a justice of the peace, then an El Paso County medical examiner would likely perform it at the funeral home.

Tentative plans call for Scalia’s body to be flown on Tuesday back home to his family in a northern Virginia suburb. President Barack Obama has ordered flags to be flown at half-staff at the Supreme Court, where Scalia served for three decades, and other federal buildings throughout the nation and U.S. embassies and military installations throughout the world.

As the flags fly lower, the campaign-year political heat has risen over the vacancy on the nine-member court.

At issue is whether Obama, in his last year in office, should offer a nomination and the Republican-led Senate should consider his choice for confirmation in an election year.

Obama pledges a nomination “in due time.” Senate Majority Leader Mitch McConnell thinks it should wait for the next president. The Republican resistance to an election-year confirmation got a thorough public airing on the Republican debate stage just hours after Scalia’s companions found him dead in his room at the Cibolo Creek Ranch in West Texas.

Republicans argued that Obama, as a departing president, should not fill the vacancy created by Scalia’s death but leave it to the next president — which they hope will be one of them.

The Constitution gives the Senate “advise and consent” powers over a presidential nomination to the Supreme Court. Ted Cruz, one of the two Republican senators running for president, told NBC’s “Meet the Press” that the Republican-controlled Senate is doing its job.

“We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court,” the Texas senator said.

Democratic candidate Hillary Clinton in Denver responded that Obama “is president of the United States until Jan 20, 2017. That is a fact, my friends, whether the Republicans like it or not.”

“Let’s get on with it,” said Clinton’s rival, Vermont Sen. Bernie Sanders, arguing that the Senate should vote on whoever Obama nominates.

Republicans insisted that refraining from Supreme Court confirmations in election years is a longtime precedent.

In fact, Justice Anthony Kennedy was confirmed by the Senate on Feb. 3, 1988, in the final year of Ronald Reagan’s presidency, by a 97-0 vote. That was a presidential election year. Kennedy was nominated in 1987 and confirmed the next year.

The example of Kennedy, who is still on the court, shows that presidents in their last year aren’t always powerless in shaping the court — and not shy about trying.