The American people will decide the Supreme Court's future anyway

Greg Nash

Republicans and Democrats disagree about almost everything in the heated debate over whether the Senate should consider a nominee to replace the late Justice Antonin Scalia before the 2016 elections. They agree, however, on a fundamental premise of the debate: that the ideological composition of the Supreme Court for a generation to come will be determined by Scalia's successor. That factual premise is mistaken.

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All 11 Republican members of the Senate Judiciary Committee have informed Senate Majority Leader Mitch McConnellMitch McConnellGOP mired in Zika dispute Judge Merrick Garland and the rise of super-PACs McConnell sets up vote to begin debate on defense policy bill MORE (R-Ky.) that they will not consider any Supreme Court nomination made by President Obama to replace Scalia. It doesn't matter how qualified or moderate the nominee is. The Republicans say that their "decision is based on constitutional principle and born of necessity to protect" the ability of the American people "to decide, in a very real and concrete way, the direction the Court will take over the next generation."

Democrats, including the president, are responding in a number of different ways to the Republicans' asserted justification for inaction. Democrats are describing it as an abdication of constitutional responsibility. They are deeming it an attempt to demean the president. They are calling it partisan and thus disingenuous.

What Democrats are not doing is disputing the assumption that the stakes are very high here. If Obama gets to replace Scalia, they reason, then the court will "flip" from having a conservative majority (which it has had for the past half-century) to having a liberal majority.

To be sure, the court is now divided 4-4 on a number of questions of legal and social significance. The list is familiar and long. But even if the president were to fill Scalia's seat with someone less conservative than Justice Anthony Kennedy (who used to have the decisive vote in most closely divided cases), the new liberal majority on the Roberts Court would likely last only a few years.

Justice Ruth Bader Ginsburg is currently 82 years old. Kennedy is 79 years old. Justice Stephen Breyer is 77 years old. Although nothing is certain in law or life, the likelihood is high that the next president will get to nominate — and the next Senate will get to decide whether to confirm — a replacement for at least one of these three justices.

If a Republican wins the 2016 presidential election and replaces Ginsburg or Breyer, then the court will once again have a conservative majority even after Obama replaced Scalia. By contrast, an enduring liberal majority on the court will likely form only if a Democrat makes the next nomination or two — not this one.

Accordingly, the conduct of Senate Republicans is not required by the principle they say they are following. Even if they consider a nomination now, the American people will still likely decide in 2016 which political party will control not just the presidency and the Congress, but the court as well in the years ahead.

Because there is not nearly as much at stake as both sides seem to think, there can be no special warrant for refusing even to consider any nominee with almost a year of the president's term remaining, something that would be unprecedented in the history of the nation. The Senate's power of advice and consent on Supreme Court nominations has not traditionally been understood by either party to imply a power to simply do nothing in response to a nomination.

Refusing to consider a nominee for the next year or more is bad for the court, and worse for the country. It will make it impossible for the court to decide important issues where the lower courts are split and the justices themselves are divided 4-4.

And it will set a new low for obstructionism and dysfunction that will make it even harder going forward to confirm any Supreme Court nominee when one party controls the presidency and the other controls the Senate. If divided government endures in 2016 and Justice Scalia's seat remains vacant, then I fear we will hear the argument that the American people should decide the court's future in 2020.

Siegel is the David W. Ichel Professor of Law and Professor of Political Science at Duke Law School.

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