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Why the Real Battle Over the Fate of the US Supreme Court Isn't About Replacing Scalia

The largely unprecedented fight between President Barack Obama and Senate Republicans over the Supreme Court vacancy created by Justice Antonin Scalia's death won't ultimately determine the makeup of the Court.
US Supreme Court Justice Antonin Scalia. (Photo by Chip Somodevilla/Getty Images)

The fight over the replacement of late Supreme Court Justice Antonin Scalia went into overdrive this week before a potential candidate was even named. In an unprecedented act of obstructionism, all 11 Republicans on the Senate Judiciary Committee pledged in writing on Tuesday not to hold hearings for any candidate President Barack Obama nominates. Then on Wednesday, word emerged that the White House might be considering Nevada's Republican governor Brian Sandoval, who favors the death penalty and once signed a brief arguing that Obamacare was unconstitutional.

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Senator Mike Lee, one of the Judiciary Committee Republicans, was unmoved. "The short answer is no," he said of Sandoval's potential nomination, "it doesn't change anything." On Thursday, Sandoval withdrew his name from consideration.

Related: Supreme Court Justice Antonin Scalia Dead at 79

Despite the overheated rhetoric from both sides, the fight over Scalia's seat is actually something of a sideshow. The fight that will truly determine the makeup of the Court for a generation to come is the fight for the White House.

The reason for the Judiciary Committee's obstruction is clear. Republicans, who control the Senate, do not want to be complicit in confirming a justice who tips the Court's balance from majority conservative, where it has held fast for the past two generations, to majority liberal. The Republicans' letter claimed their decision was "based on constitutional principle and born of a necessity to protect the will of the American people."

They did not specify what principle was at stake because there is none — unless partisan gridlock has become a constitutional principle. And because the American people have not asked the Republicans to construct this blockade, refusing to consider any candidate on his or her merits does not protect the will of the American people. It was the people, after all, who voted for this president knowing that he, like all other presidents before him, would have the power to nominate justices.

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According to a study by Georgia State University College of Law professor Neil Kinkopf, US presidents have nominated 18 people to fill Supreme Court vacancies in election years; the Senate confirmed 11 of them. Even more striking, lame duck presidents have nominated 11 people to fill vacancies on the Court after the November election and before the subsequent inauguration — and the Senate confirmed seven.

Recently, some pundits and media outlets have pointed out that in 1992, Senator Joe Biden urged President George H.W. Bush to wait until the election campaign was over before nominating a replacement if a Supreme Court justice should resign. But Biden advised deferral, not total obstruction; Bush would have gotten his nomination considered after the November election in order to avoid the partisan wrangling of a campaign season. In any event, it was all speculation, as no justice resigned. Thus, the Republicans' conduct this week is truly without precedent.

Let's suppose for a moment, however, that we lived in an alternate universe, where Congress actually functioned and Obama was able to get a justice confirmed before leaving office. Let's also suppose that that justice leaned liberal.

Related: Scalia's Death Clouds US Supreme Court Decision on Colorado's Legal Weed

Then suppose Donald Trump or Marco Rubio became our next president. Three justices will be 80 or older in the next president's first term. Especially if the next president serves two terms, it is virtually certain that he or she will select two or three new justices. If a Republican president were to replace Justice Ruth Bader Ginsburg, the Court's oldest current justice, for example, the Court would once again be solidly conservative. The liberal majority temporarily effectuated by Obama's appointment would end up being a hiccup in history.

By the same token, if Hillary Clinton or Bernie Sanders become the next president, the Court will lean liberal regardless of Obama's nominee.

It is flatly irresponsible for the Senate Republicans to refuse to consider a nominee before he or she has even been identified. But the much more critical issue is who wins the next presidential election; whatever happens with Scalia's seat now, actuarial realities virtually ensure that it is the next president, not Obama, who will have the opportunity to shape the character of the Court for a generation to come. If any good comes from the Republicans' partisan blockade, it will be to underscore that reality.

David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown Law. His new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, comes out in March. Follow him on Twitter: @DavidColeGtown