Noah Feldman, Columnist

Fighting Clinton’s Court Nominees? That’s Crazy

The Senate’s outright rejection of her Supreme Court choices wouldn’t create a constitutional crisis. But it wouldn’t do Republicans any favors.

October 20, 2016 at 7:47 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Be careful what you wish for, Senator.
Photographer: Chip Somodevilla/Getty Images

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Senator John McCain may not have meant to say that a Republican Senate would refuse to vote, either up or down, on any Supreme Court nominee put up by Hillary Clinton. But what if Republican senators just said they would vote down any candidate Clinton nominated? Would the resulting political standoff amount to a constitutional crisis?

I think the answer is no. The court would continue to function -- and the rules of confirmation would change. Under the new regime, to fill a Supreme Court vacancy would require that one party control both the presidency and the Senate. The court would operate shorthanded, sometimes very shorthanded, until that happened. When it did, that president would get a lot of appointments, probably enough to change the direction of the court.