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Friday 21 October 2016

Death of ultra-conservative Supreme Court judge sparks political turmoil

Published 14/02/2016 | 02:01

Justice Antonin Scalia's death has sparked a political storm over his succession (AP)
Justice Antonin Scalia's death has sparked a political storm over his succession (AP)

America's top court is at the centre of an ideological battle amid the maelstrom of a presidential election year, following the death of its most provocative and fiercely conservative member.

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Supreme Court judge Antonin Scalia, 79, was found dead on Saturday at the Cibolo Creek Ranch, a secluded retreat for the rich and famous in West Texas, after not appearing for breakfast, t he US Marshals Service in Washington said.

Mr Scalia was part of a 5-4 conservative majority - with one of the five, Anthony Kennedy, sometimes voting with liberals on the court.

His death now leaves President Barack Obama considering when to nominate a successor, a decision that immediately sparked a political struggle, drawing in Congress and the US presidential candidates.

The immediate impact of his death for the current term means that the justices will now be divided 4-4 in the most contentious cases. If there is a tie vote, then the lower court opinion remains in place. Cases where the current court was expected to split 5-4 include disputes over abortion and immigration policy.

Senate majority leader Mitch McConnell, as well as Republican presidential candidates Ted Cruz and Marco Rubio, said the nomination should fall to the next president.

Democrats were outraged, with Senator Harry Reid saying it would be "unprecedented in recent history" for the court to have a vacancy for a year.

Democratic presidential hopeful Hillary Clinton, describing Mr Scalia as a "dedicated public servant" even though she disagreed with his views, said Republicans calling for the seat to remain vacant until the next president entered office "dishonour our constitution".

Leaders in both parties are likely to use the high court vacancy to implore voters to nominate candidates with the best chance of winning in the November general election.

Mr Obama was golfing in California before a summit with Asian leaders when he learned of Mr Scalia's death and sent his condolences to his family, the White House said.

He said he planned to fulfil his constitutional responsibility and nominate a successor to fill the Supreme Court vacancy and, i n a direct rebuttal to Senate Republicans, said there was plenty of time for the upper house to confirm his choice, calling the decision "bigger than any one party" and about democracy.

Mr Scalia used his keen intellect and missionary zeal in an unyielding attempt to move the court further to the right after his 1986 appointment by then president Ronald Reagan.

He also advocated tirelessly in favour of originalism, the method of constitutional interpretation that looks to the meaning of words and concepts as they were understood by the Founding Fathers.

His impact on the court was muted by his seeming disregard for moderating his views to help build consensus, although he was held in deep affection by his ideological opposites and fellow New Yorkers, Justices Ruth Bader Ginsburg and Elena Kagan.

Mr Scalia and Justice Ginsburg shared a love of opera and he persuaded Justice Kagan to join him on hunting trips.

His 2008 opinion for the court in favour of gun rights drew heavily on the history of the Second Amendment guaranteeing the right to bear arms and was his crowning moment on the bench.

He could be a strong supporter of privacy in cases involving police searches and defendants' rights b ut also voted consistently to let states outlaw abortions, allow a closer relationship between government and religion, permit executions and limit lawsuits.

He was in the court's majority in the 2000 Bush v Gore decision, which effectively decided the presidential election for Republican George Bush.

A smoker of cigarettes and pipes, Mr Scalia enjoyed baseball, poker, hunting and the piano. He was an enthusiastic singer at court Christmas parties and other musical gatherings, and once appeared on stage with Justice Ginsburg as a Washington Opera extra.

Quick-witted and loquacious, Mr Scalia was among the most persistent, frequent and quotable interrogators of the lawyers who appeared before the court.

His writing seemed irrepressible and entertaining much of the time but it also could be confrontational. It was a mocking Mr Scalia who in 1993 criticised a decades-old test used by the court to decide whether laws or government policies violated the constitutionally required separation of church and state.

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, (the test) stalks our ... jurisprudence once again, frightening the little children and school attorneys," he wrote.

He showed a deep commitment to originalism, which he later began calling textualism. Judges had a duty to give the same meaning to the US Constitution and laws as they had when they were written. Otherwise, he said disparagingly, judges could decide that "the constitution means exactly what I think it ought to mean."

His dissents in cases involving gay rights could be as biting as they were prescient.

"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Mr Scalia wrote in dissent in 2013 when the court struck down part of a federal anti-gay marriage law.

Scalia was passionate about the death penalty. He wrote for the court when in 1989 it allowed states to use capital punishment for killers who were 16 or 17 when they committed their crimes. He was on the losing side in 2005 when the court changed course and declared it unconstitutional for states to execute killers that young.

In 2002, he dissented from the court's decision to outlaw executing the mentally disabled and in the same year, he surprised some people with a public declaration of independence from his Roman Catholic church on the death penalty. He said judges who follow the philosophy that capital punishment is morally wrong should resign.

Mr Scalia and his wife Maureen had nine children.

Press Association

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