founders would have scoffed at gay rights, abortion rights and affirmative action >> you can not adevelop a fair ee adopt a theory. you cannot cause the supreme court to package a very political institution. >> reporter: his critics say that's what he did. his vote on key five to four decisions struck down decisions. it helped decide the 2011 election in favor of george w bush. his death sets a titanic struggle. president intends to name his successor >> there will be plenty of time for me to do so and for the senate to fulfil its responsibilities to give that person a hearing and a timely vote >> reporter: it comes up when the court is to rule on various important matters. the president names the candidate and the congress decides it. unless president obama can come up with a common ground candidate with little common ground between him and the congress, it makes it will unlikely he will have within confirmed by the election. that could mean all three branches. government, the presidency, congress and high court are all in play in the november election >>> the justice's death came up at