Now ask yourself a question about today’s Senate: How many of the 45 Republicans now in the Senate would break with their party and vote to end a filibuster of an Obama Supreme Court appointment? How many would risk a Tea Party primary opponent, or a talk radio onslaught, and step away from a fight to stop Obama from putting a pro-choice, “living Constitution” Justice on the Court for the next generation?

And if that meant leaving the Court with only eight justices—or seven, should a second vacancy develop—the Republican minority would be more than happy to live with that. There’s nothing that requires the Congress to fill all nine positions on the Court. Indeed, the case for leaving a seat empty was made by a prominent academic liberal, after the contested 2000 election. Yale Law professor Bruce Ackerman argued then that “when sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush” until 2004, when the country could decide the legitimacy of Bush’s tenure. (As it happened, there were no vacancies in his first term, and Bush won a clear, if narrow, victory in 2004.) Given the zeal with which the Republican base argues that Obama is a lawless, Constitution-shredding chief executive, it is an easy step to argue that we should wait until a new chief executive is chosen in 2016.