What Happens If Republicans Refuse to Replace Justice Scalia?

Senators Ted Cruz and Richard Burr and some conservative legal scholars are arguing that if a Democrat wins the election, the Senate should refuse to confirm anyone.

Jonathan Ernst / Reuters

What’s the opposite of Court-packing? It’s one of those linguistic holes that no one knew existed until the last week. Now it’s time for the wordsmiths to get to work.

The Supreme Court is already short-staffed, ever since the death of Justice Antonin Scalia in February. A month later, President Obama nominated Merrick Garland, the chief judge on the D.C. Circuit Court of Appeals, to succeed him. And that’s about where things have sat ever since. Republicans in the Senate have declined to even hold hearings on Garland’s nomination, much less a vote, arguing that voters deserve a chance to weigh in. (Democrats like to point out that voters elected Obama in 2012 for a term that is still ongoing.)

For months, the debate centered on what would happen if presidential favorite Hillary Clinton won. Would Senate Republicans decide to move on the Garland nomination during the post-election lame-duck session? If not, would Clinton honor Obama’s selection, or would she ask Garland to withdraw and nominate her own (presumably younger, possibly more clearly liberal) choice?

Now the debate has shifted, as several Republican senators have suggested simply not allowing any Democratic selections to the Supreme Court at all. Late on Monday, CNN reported on private remarks made by Senator Richard Burr, a North Carolina Republican up for reelection. He said that there will be no lame-duck confirmation, and then added, “And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

That aligns him with Senator Ted Cruz, who last week told Dave Weigel, “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

A week before that, Senator John McCain, who is also running for reelection, said, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Later, however, a spokeswoman partially walked back his comments, saying the Arizonan will “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

There’s some support for the argument among conservative intellectuals too. Ilya Shapiro argues in The Federalist that the Senate should block any Clinton nominees, saying the Constitution allows it. Michael Stokes Paulsen writes in National Review that the Court should be reduced from nine to six justices. While he supports a legal change in the future, Paulsen says attrition by refusing to confirm would be a good way to get down to six.

Shapiro is correct legally—there’s no explicit, affirmative obligation to confirm. But refusing to confirm is deeply anti-conservative, in the small-c sense of following norms and customs. Meanwhile, the effects of a smaller court are already on display. Because the court now has an even number of members, it can lock in a tie, in which case the lower court ruling is affirmed. This has already happened in a case involving President Obama’s attempt to protect some undocumented immigrants from deportation.

One nightmare scenario circulating among politicos with dark sense of humors imagines that the presidential election could end in a 269-269 electoral-vote tie. A deadlocked Supreme Court, split along ideological lines, would also tie 4-4, leaving the election in dispute, with no clear resolution.

Even without that, ties would rework the shape of the justice system. “As at present, ties would yield no precedent but merely affirm lower courts’ rulings, with more limited effect,” Paulsen writes. “Fewer justices thus means less judicial activism, at least at the Supreme Court level.” Yet that would do nothing to limit judicial activism at the lower-court level. Because the Supreme Court couldn’t set precedent, different circuits could end up with radically different precedents, further balkanizing an already geographically polarized country.

The unstated implication of Cruz and Burr’s argument is that Democratic presidents—whether Obama or a hypothetical Clinton—are less legitimate than Republican presidents, who should be allowed to make appointments on the Supreme Court. The essential motivation is still just the same—ideological disagreement—but there is no longer any pretense of respecting the other party’s mandate. It’s the logical end of the increasing politicization of the court-nomination process.

For a time, confirmation was largely pro-forma, before gradually becoming more political, with Democrats maneuvering to torpedo Robert Bork’s nomination to the court in 1987. Then came filibusters—including the unsuccessful one of now-Justice Samuel Alito that Obama joined. Both sides now hold that voting against nominees on partisan grounds of nominees’ views is legitimate. Simply refusing to even consider nominees, regardless of qualifications, is both a clear step beyond that but also an obvious evolution of it.

In addition to the potential for ties, one other major problem with this drift in Court politics is the precedent it sets. No Democratic president would be able to appoint any nominee as long as she or he did not have a Democratic Senate. (Democrats are already discussing eliminating the filibuster if they win the Senate, and Republicans have talked about doing the same.)

Once such a precedent was in place, a Democratic Senate would surely refuse to confirm any Republican presidents’ nominees if at all possible. Consequently, American government would only function when a single party had complete control—control of the Senate and the White House, and then by virtue of those, control of the Supreme Court, since a president of either party would almost certainly choose to appoint a full complement of justices if possible. The United States could end up ungovernable except under one-party rule.