The Republic Will Survive the Scalia Vacancy

A year without a ninth justice isn't a constitutional crisis.

There's order on the court.

Photographer: Somodevilla/Getty Images

The unexpected need to replace Supreme Court Justice Antonin Scalia has brought forth several weak arguments from both sides. The big question is what should happen versus what will happen. 

To begin with, Barack Obama is obviously entitled to nominate someone for the vacancy. It would not be unprecedented, divisive or unusual for a president in his last year in office to do so. And the Senate has no history of utterly refusing to consider any nominee made by a president at this stage. There's no constitutional justification for waiting until the next election, as Mitch McConnell and various other Republicans would have it, to give the American people "a voice in the selection of their next Supreme Court justice."

But Democrats are wrong to say, as Hillary Clinton has, that refusing to confirm a nominee is to "put politics over the Constitution." The Senate majority is in a constitutional position to defeat any nominee it wants. It doesn't matter if this is done early, by burying the nomination in committee without even a hearing, or killing it by filibuster, or defeating it in a final vote on the Senate floor. 

The possibility of an impasse does not mean the system is irrevocably broken or is likely to end in a constitutional crisis. The republic can survive a year without a ninth Supreme Court justice. It would even survive an extended vacancy or two on the court, as might happen if the election in November produces another Democratic president and Republican-majority Senate. 

It isn't even certain yet -- whatever Mitch McConnell says now -- that the Senate will block an Obama nominee outright. After several Republicans up for re-election have survived primaries in states such as New Hampshire, Illinois, Wisconsin and Pennsylvania, they may find themselves under pressure in the midst of their general-election battles to find a compromise. 

It's true, as Scott Lemieux argues, that unprecedented Senate blockades of Obama nominations to U.S. Circuit Court seats have had few if any electoral consequences, but the Supreme Court may be another story. The press won't ignore it. And while it isn't the same thing, it's worth mentioning that Republicans have not blocked the highest-visibility executive-branch positions (attorney general and secretaries of State, Defense and Treasury).  

Obama could try to compromise by choosing someone who is considered moderate, or he could select an older nominee who would presumably sit on the bench for a decade or so instead of the long span expected when Obama nominated Sonia Sotomayor and Elena Kagan and George W. Bush named John Roberts and Samuel Alito. 

If polls show the Democrats doing well later this year, during the general-election campaign, Republicans might be more open to such options, since failing to compromise this year might risk the appointment of a young, very liberal justice down the road.   

The odds are that a new president will be from the same party that gains or holds the majority in the Senate. In that case, a full court will be restored rapidly, though it may require eliminating the filibuster on Supreme Court nominations.   

Meanwhile, remember that this is the first time in well over a century  that a Democratic president and a Republican-majority Senate have faced a Supreme Court vacancy together. We have some precedents, but none of them are binding on either Obama or the Senate. There's nothing wrong with people urging both sides to find common ground -- it's a source of pressure consistent with the constitutional system -- but if we get a bitter, prolonged fight, it isn't a disaster.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.