The Senate should refuse to confirm any Obama nominee to replace Justice Scalia

We should recognize first the Senate has no constitutional obligation to fill any vacancies on the courts or in the executive branch. Article II of the Constitution gives the president the power to appoint justices, but only with “the advice and consent” of the Senate. It does not require that the Senate give the president’s nomination approval, or a rejection, any more than it requires the Senate to quickly give its advice and consent to a treaty negotiated by the president. President Obama can nominate anyone he likes, or he can leave it to the results of the November election. The Senate can confirm, reject, or just sit on the nominee, just as it can with any other proposal from the executive branch. Its right to delay or reject nominees is an important weapon in the constant struggle for advantage between the executive and the legislative branches.

Some may suggest that the Court needs nine members to function properly. This argument is simply untrue. Unlike the presidency, the Supreme Court is a collegial body. It can do its job with eight members; at the beginning of the Republic, it operated with six. The Constitution itself requires only that the Court have a chief justice and reserves to Congress the choice over its size. The Court has virtually complete control over its docket, and if it were truly feeling burdened by too much work, it could just hear fewer cases. Although the justices are taking more-controversial cases than ever, they are also taking many fewer cases than they did 30 or 40 years ago.

Any idea that the Court needs its full complement is truly a red herring. Even with only eight members, the justices will still vote. The Court will still issue decisions, just as it does when a justice is recused. The justices can even decide to hold over a case for next year, when it comes back up to full strength. If they divide 4–4 on a case, then the decision of the lower court still stands; the Court can always take the issue in another case in the future. In several of the most important cases this term, it is not even clear that Justice Scalia would have made the difference. On affirmative action, one of the liberal justices is recused (Justice Elena Kagan), so the conservatives should still prevail, 4–3. On abortion rights, the liberals on the Court already held a majority, thanks to Justice Anthony Kennedy, and so the Scalia vacancy would not change the outcome. On immigration, a 4–4 Court allows the lower court’s opinion — which struck down Obama’s refusal to enforce the laws — to stay in place. The most important case that turns on Justice Scalia is whether unions can force all employees in a workplace to support their lobbying for political candidates. Now, that law will probably survive and nervously await another day before the Court.