The contentious struggle over Merrick Garland’s nomination to the Supreme Court may lead the Senate to abolish filibusters over Supreme Court appointments. Photograph by J. Scott Applewhite / AP

The nomination of Merrick Garland to the Supreme Court has already devolved into a political war of attrition. In the week since President Barack Obama named Garland, the chief judge of the D.C. Circuit, to replace Justice Antonin Scalia, who died in February, the vast majority of Senate Republicans have stood by the pledge of their leader, Mitch McConnell, that Garland will be denied a hearing or a vote. A handful of Republican senators have deigned to meet with Garland, but the prospect of a hearing or a vote, let alone a confirmation, seems remote indeed.

It’s worth noting what it would take to confirm Garland, under the rules that currently prevail in the Senate. The Republican caucus is now fifty-four senators, and there are forty-six senators (including an independent) in the Democratic caucus. Virtually all Senate action is now filibustered, meaning that it would take sixty votes—the whole Democratic caucus, and a total of fourteen Republicans—to invoke cloture and proceed to a majority vote on the nomination. There simply are not fourteen current Republican senators who will allow Obama to see his choice confirmed. Barring a major, unexpected electoral upheaval in November, a stalemate is bound to continue until the end of Obama’s Presidency, next January.

But what then? The odds currently favor Hillary Clinton as the next President, and the Democrats probably have a reasonable chance of retaking control of the Senate, but even if they do the margin will most likely be small, in the range of fifty-one to fifty-three seats. The new President Clinton will then either re-nominate Garland or name her own choice for the seat, who will be voted on by the new Senate.

The current battle over Garland gives a clear idea of what will happen to that nomination. The Republicans would describe a Clinton nominee as a liberal activist who is particularly determined to strip gun rights from the American people. The National Rifle Association has already more or less described Garland that way, even though he has never written a word about the Second Amendment. And so Republicans will filibuster the next Democratic appointee to the Supreme Court. With fewer than sixty votes, the Democrats will have no way of breaking it. The Democratic senators will thus be in an analogous situation to the one they were facing in late 2013, when the Republican minority was filibustering virtually all of President Obama’s nominees to the circuit courts. Under the leadership of Harry Reid, the Democratic leader, the Democrats responded by invoking, by simple majority vote, the so-called nuclear option. They changed the rules of the Senate so that district- and circuit-court nominations, as well as most executive-branch nominations, could no longer be filibustered. As a result, Reid was able to get dozens of lower-court judges confirmed before his party lost control of the Senate in the 2014 midterms.

The 2013 nuclear option contained an important exception. The Senate rules continued to allow filibusters on nominees to the Supreme Court. Senate old-timers like Robert Byrd (who died in 2010) and Patrick Leahy (the senior Democrat, who was first elected in 1974) defended the filibuster as part of the Senate’s role as the “cooling saucer” in legislative contests with the House of Representatives. But that exception might not survive a showdown over a Democratic appointee in 2017. The Democratic caucus in the Senate is now dominated by younger senators—like Jeff Merkley, of Oregon; Tom Udall, of New Mexico; and Tim Kaine, of Virginia—who have less reverence for the traditions of the body. For them, the filibuster has mainly been a vehicle for delay and obstruction.

The conflict between the new guard and old will likely come to a head over a Supreme Court nomination. If a moderate like Garland can get majority support but not sixty votes, what will the Democrats do? It is a good bet that they will go nuclear again—and abolish filibusters for Supreme Court nominees as well. That would be a healthy step for both Democrats and democrats. The filibuster has become a cancer on the legislative process, creating the need for supermajorities on even the most routine business. The less it exists, the better.

Supporters of the filibuster will warn that if it is abolished for Supreme Court nominees, it will soon be abolished for legislation too—and then the Senate will become more like the House. And that will be fine. The Senate is, by design, a less than democratic body; there is no real justification for the fact that small-population states like Vermont and Wyoming have the same number of senators as California and Texas. The existence of the filibuster only exacerbates the anti-democratic nature of the chamber. Merrick Garland’s nomination will prove consequential indeed if it helps usher the filibuster to its long-overdue demise.