Those of us who agree with Scalia’s view should keep it in mind as we consider how to respond to the vacancy on the Supreme Court. The Constitution gives President Obama the power to nominate someone to fill it, and gives the Senate the power to decide whether to hold a vote on his nominee. Those who want Obama to have another Supreme Court appointment are going to make their arguments that time-honored norms militate in favor of what they want, and those who don’t will find time-honored norms that militate the other way. The fact that this president has repeatedly stretched the Constitution will doubtless also be part of the debate, as it should be.

But the norms surrounding the Court also need to be rethought in light of the role it has come to play in our national life over the last few decades. Senators—first the Democrats, then the Republicans—have already largely abandoned the old norm of “deference” to a president’s nominees: the idea that a nominee should be confirmed so long as he is ethical, has the relevant credentials, and is respected by other lawyers. As the Court has taken on more legislative authority, senators have begun to evaluate nominees as potential lawmakers.

As presidents also evaluate them. Obama has made it clear that he wants justices who will satisfy certain liberal litmus tests.