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Notebook

Scalia’s Supreme Court Seat and the Next Frontier in Political Hardball

It takes no feat of imagination to guess how the debate about replacing Justice Antonin Scalia, who died unexpectedly on Saturday, will take shape. Within a couple of hours of news of his death, Mitch McConnell, the Senate majority leader, joined by fellow Republicans like Ted Cruz, said that Justice Scalia’s seat on the United States Supreme Court should remain vacant until after the November presidential election.

“It’s called delay, delay, delay,” Donald Trump said at the opening of the Republican presidential debate on Saturday night. Harry Reid, the Senate minority leader, countered that it would be “unprecedented in recent history” for the Supreme Court to go a year without a full complement of justices. Before the evening was over, President Obama promised to nominate a successor, saying he expected a timely Senate vote.

The stakes here are also clear: The Republicans have held a majority on the Supreme Court for almost half a century, since the Burger Court of the early 1970s. Changing the balance of power would be seismic. Replace Justice Scalia with a Democratic nominee, and the court’s recent conservative rulings, which have limited voting rights and hobbled campaign finance reform, could go by the wayside. The constitutional right to abortion would be on far firmer footing, along with affirmative action, union dues and Mr. Obama’s plans to help undocumented immigrants and address climate change. The court could even decide to end the death penalty.

These are big shifts, either terrifying or thrilling to contemplate, depending on your political stance. It is obviously good politics for Mr. McConnell, Mr. Cruz and anyone else courting the conservative base to promise not to let the Supreme Court flip.

If Mr. Obama nominated a moderate and the Republicans who control the Senate refused to confirm the nominee, would the country find itself in the throes of a constitutional crisis? I did a quick poll of five constitutional law professors on Saturday night, and the consensus was no. “The world won’t crumble,” as Bruce Ackerman, a Yale law professor, put it.

The government will still function in the interim, even if it is a long interim. The court can still decide cases. If it splits 4 to 4 (as it does every once in a while when one justice or another sits out a case), then the lower court ruling is upheld. That is likely to happen in one major case this term. The court recently heard arguments in a significant challenge to the labor movement over the collection of dues by public-sector unions, and it looked as if the plaintiffs would prevail; a tie, without Justice Scalia, would keep the current system intact. Even a run of 4-to-4 rulings would not create chaos. The outcomes would be more likely to preserve the status quo, especially because the court could wait to take cases until it can resolve them with a clear majority.

But even if a Republican refusal to confirm a nominee by Mr. Obama would not bring the government to a stop, it would still be a major political struggle — a “stress test for our system of separation of powers,” said Richard Hasen, a University of California, Irvine, law professor and author of the new book “Plutocrats United.” In 2004, Mark Tushnet, a Georgetown University law professor, wrote an article about “constitutional hardball,” which he defines as legal and political moves that are “within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.”

In other words, as Matthew Yglesias of Vox put it, “moves that do not violate the letter of the law, but do trample on our conventional understanding of how it is supposed to work.” The rise of the filibuster, especially to obstruct the routine working of government, is a particularly good example: It is not unconstitutional or otherwise illegal, but it has become a sharpened partisan weapon. It also strains the traditional system of separation of powers, transforming the Senate from a cooling saucer into a freezer.

I asked Professor Tushnet if Mr. McConnell’s apparent plan to block an Obama nominee qualifies as constitutional hardball. He said “probably yes,” explaining in an email: “The argument for calling it hardball is that there might be a reasonably settled understanding that it’s undesirable for the Supreme Court to operate ‘too long’ without a full complement of judges, and, as a result of that understanding, that the Senate will consider nominations sent to it reasonably far in advance of a presidential election.”

But Professor Tushnet pointed out that there was not a lot of precedent for the situation in which we currently find ourselves. Only two Supreme Court justices have died in office in the last 60 years. Most have controlled the timing of their retirements, and have chosen to leave the bench when the party that selected them holds the presidency and the Senate. You have to go back to Ronald Reagan’s presidency for the kind of tumult we are likely to see in the coming months. Mr. Reagan nominated Anthony Kennedy on the last day of November 1987, after the retirement of Justice Lewis Powell, when Reagan had 14 months left in office and a Democratic Senate, which confirmed Justice Kennedy in February 1988. Mr. Obama has 11 months to go and a Republican one.

One name being circulated as a possible nominee is Judge Srikanth Srinivasan, who was confirmed to the United States Court of Appeals for the District of Columbia Circuit by a Senate vote of 97 to 0 less than three years ago. If the Republicans block a nominee like Judge Srinivasan, they risk charges of not just obstructionism but also hypocrisy, since they just helped put him on the Court of Appeals. But maybe they will not care. Maybe it matters more to please the base and emphasize the divide between the parties’ visions of the Supreme Court for the November election.

The election is the Constitution’s answer for preventing any long-term crisis. The voters will get to punish or reward whichever party they choose. But a year or more of a Supreme Court vacancy would expose the creaks in the joints of the Constitution. Maybe it is an argument for updating the 226-year-old document. If Supreme Court justices served 18-year terms instead of life tenure, their appointments could be staggered so that each president would get two. The process would be more predictable and more orderly.

But the chances for that kind of constitutional amendment are probably lower than the odds of the next justice sailing to his or her confirmation. Hardball, here we come.

Emily Bazelon is a staff writer for the magazine and the Truman Capote Fellow at Yale Law School.

A version of this article appears in print on  , Section A, Page 14 of the New York edition with the headline: Opening Next Frontier in Political Hardball. Order Reprints | Today’s Paper | Subscribe

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