Justice Scalia’s recent passing was a sad and poignant moment for his family and friends.  But within hours, it became the latest flash point in a thirty-year war over the Supreme Court – with both sides immediately posturing over whether President Obama should even nominate a successor.

My answer to this question: It depends on the nominee and how the nominee was selected.

A look back through confirmation proceedings of the 20th century shows that the difference between a nominee and a confirmed Justice turns on the White House consulting and cooperating with the Senate – which I believe this administration is eager to do.

As chief counsel for then-Senator Biden and the Democrats on the Senate Judiciary Committee when President Reagan nominated Scalia and Judge Robert Bork, I had a unique vantage point over the direction of the Court. 

Even though Biden advised Reagan against nominating Bork, the administration saw the 1987 fight as the opportunity to finally reverse the jurisprudence of the Warren Court.  The Senate responded in turn, rejecting Bork’s nomination.  But when Reagan sought advice from the Senate, he nominated center right Anthony Kennedy. President HW Bush followed this mold, nominating David Souter. Both were overwhelmingly confirmed.

To be clear, under the Constitution, President Reagan was—like many presidents before him—perfectly entitled to try and shape the Court’s direction. By the same token the Senate was empowered, indeed obligated, to block those presidents if it disagreed. So in fact, other than the lack of decorum and taste with which the fight ensued within hours of Scalia’s death, the nature—but not the tactics—of this fight is perfectly consistent with our history and the Constitution.

In total, the vice president presided over ten nominees that were sent to the Judiciary Committee during his time there. Every single one got a committee hearing, committee vote, and full Senate floor vote within a few months. 

Nine of these nominees were successful. But when presidents sought to make political appointment – like Bork – the nominees went down.

The most important lesson that can be gleaned through the history of Supreme Court confirmations is this: we must recognize that the Court, unlike the Senate or the presidency, is NOT a political institution.  Its credibility depends on the perception that it makes its decisions based on principle, not ideology or politics.  The American people expect the president and the Senate to engage in a public struggle over the direction of the Court, with a clear commitment to fairness and process.   

Nearly twenty-six years ago – in June of 1992, just two weeks before the first party nominating convention that summer – then-Senator Biden took to the Senate floor to make this point, among others. He talked about a hypothetical vacancy on the Court, as there was a belief at the time that Justice Harry Blackmun would choose to retire in the last few months of President George H.W. Bush’s term. He was trying to avoid another unnecessary battle over the Court.

Detractors of President Obama’s responsibility to address an actual Supreme Court vacancy requiring action – one caused by death – were quick to pounce on his words.

Drawing a false equivalency, they overlooked another portion of the same speech where Senator Biden said that “If the President consults and cooperates with the Senate,” then the nominee would “enjoy my support.”

As Biden said during one of the 11 nominations he oversaw, “I believe the Senate should work its will. It is not the right nor the intention of the Constitution for a committee in Congress…to be able to determine who should sit on the Court.”

Senate Republicans would be smart to heed his advice.

The Senate can and should do its job to prevent the Court from being stalemated 4-4 for over a year.  Today’s Senate Republicans should follow regular order—and, indeed Biden’s example—in considering Scalia’s replacement.  Obama’s nominee is entitled to a hearing, a vote in committee and in the full Senate.  If Republicans disagree with the nominee’s jurisprudence, as they are entitled, they can and should vote against the choice. 

The Republicans are right that the American people are entitled to influence that choice, as they did with Bork.  The senators who vote for or against the Obama nominee will face the voters and should be prepared to defend their stance—after voting on a nominee in the coming months, in line with every Supreme Court nomination in modern history.

Gitenstein was chief Democratic counsel for the Senate Judiciary Committee (1981-9). He wrote on the Bork fight, Matters of Principle (Simon & Schuster 1992) and served as U.S. ambassador to Romania (2009-12) and currently practices law in Washington at Mayer Brown LLP.