Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School. Follow him on Twitter @Richard_Primus.

Even in a year when the bizarre is becoming routine in politics, the fight over the Supreme Court vacancy stands out. All signs suggest the Senate’s Republican leadership wants to stick to its threat to refuse any confirmation hearings on President Obama’s nominee, Merrick Garland, until after the November elections. Despite the defections of a few Republican senators who say the Senate should hold hearings, the stalemate over whether to replace Antonin Scalia, who died in February, looks like it could last into 2017.

No Supreme Court nominee in history has waited that long for the Senate to take action. If the court vacancy lasts a year or more, there will be some real costs to leaving the court shorthanded. A court with eight justices will often deadlock in contested cases, and therefore fail to execute the court’s major function: providing resolution on constitutional issues where the lower courts disagree.


But that problem is tiny compared to the real threat that the current situation poses—one we’ve barely begun to consider. That bigger threat is this: The stalemate isn’t time-limited and it isn’t stable. It could last a lot longer than the present election cycle, and if it does, the conflict over Justice Scalia’s successor could escalate far beyond its current dimensions. This is because the Supreme Court’s role in American government rests on a set of conventions for avoiding all-out political conflict—and once those conventions start to crumble, there’s no way to tell how it will end.

If the same party wins the White House and the Senate in November, the biggest dangers will be averted: The president will appoint a new justice, whether it’s Garland or someone else, and the Senate will vote to confirm him or her.

But suppose Hillary Clinton wins the presidency and the Republicans keep control of the Senate. There’s every reason to think that the Senate’s refusal to confirm a Democratic nominee would continue. All of the GOP’s political reasons for blocking a Democratic nomination in 2016 will still be in force in 2017, and the ideological balance of the Supreme Court will still be at stake. Republican senators who care about that now will still care about it next year. And to the extent that Republican senators fear retribution from their conservative constituents, a confirmation vote might be even more dangerous in 2017, when they’re looking ahead to the more ideological voters of an off-year primary. (This year, a confirmation vote likely wouldn’t take place until they’re facing more moderate general-election voters in a presidential contest.)

So if a Republican Senate won’t confirm a Democratic nominee in 2016, it might well not confirm one in 2017, either. Then what? That’s when all bets are off.

It might seem that the president simply can’t do anything without Senate action, given the constitutional requirement of advice and consent. But it would be naïve to think that the president wouldn’t try to come up with something. Especially with stakes as high as control of the Supreme Court, it makes more sense to think that every escalation risks provoking some further escalation from the other side. Or, put more particularly: President Hillary Clinton is not going to sit patiently month after month while the Senate refuses to confirm her nominee.

The Supreme Court hasn’t had a majority of Democratic appointees since 1970—a year after Hillary Rodham graduated from Wellesley. Like every other liberal lawyer in America, Clinton has been waiting a long time to take the court back, and if for some reason she decided to de-emphasize that opportunity, she would hear about it from her own base. The pressure to get a Democratic nominee on the court will start high and build quickly. And if the Senate continues to refuse to act, that means that the President would have to play a card higher than the one the Senate is playing.

If the Senate holds its ground, what might an escalation in the judicial confirmation battle look like? There’s no way to know for sure. One of the dangerous things about escalating conflicts is that the menu of possible moves is not set in advance, and people might wind up doing something both unexpected and unexpectedly damaging. But here’s one possibility—offered both for its own value and as an illustration of what sorts of things might lie down this road.

At some point, someone in the White House counsel’s office will notice that the Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee. The Constitution says that appointments shall be made “with the advice and consent” of the Senate. Traditionally, we have thought that the Senate’s “consent” is signaled by an affirmative vote. But voting on the nominee is just a convention—a shared understanding among the players in the game that we do things a certain way.

This is where the fragility of conventions comes into play. Just as there’s no rule that the Senate needs to consider the nominee quickly, there’s no clear reason why the Senate’s consent to a nomination must be signaled with an affirmative vote.

The history of judicial appointments over the last few decades is a history of one convention after another being tossed out.

In many areas of the law, silence signifies consent. One could perfectly well read the Constitution to mean that the Senate has consented to a nominee if it remains silent for some reasonable period of time—in fact, it might make a lot of sense to read the consent requirement that way. If the president nominates Merrick Garland and the Senate finds him objectionable, the Senate can say so. And if the Senate doesn’t bother to do anything and some reasonable period of time elapses, you could argue that implies that the Senate has no objection strong enough to prevent the nominee from taking office.

If going without a Senate confirmation vote seems like an affront to tradition, it’s important to realize that the history of judicial appointments over the last few decades is a history of one convention after another being tossed out. The political parties have been escalating their conflict over judicial personnel for years. Once upon a time, there was a convention by which senators gave presidents of the opposing party substantial latitude to name judges and justices, expecting similar courtesy when it was their side’s turn to do the nominating. Now, the Senate routinely refuses to confirm perfectly mainstream and honorable people even to positions on the lower courts. Once upon a time, the Senate permitted a substantial minority of senators to block appointments by filibuster, and that convention too has disappeared (at least where lower courts are concerned), as the two parties have raised the pitch of their conflict over the judiciary. In short, if we have learned anything from the steady deterioration of intraparty cooperation in judicial nominations over the last quarter-century, it is that we should no longer expect traditional conventions of deference to carry the day. We’re playing hardball now.

So imagine this script. Conscious of the apparent radicalism of deeming a Supreme Court nominee appointed without an affirmative Senate vote, President Hillary Clinton approaches the project incrementally. On January 20, 2017, she nominates a Deputy Secretary of Agriculture, and three weeks later, when the Senate has done nothing, President Clinton mentions at a press briefing that if ninety days go by from the date of nomination and the Senate still hasn’t acted, she will take that to mean that the Senate has no objection and has consented to the appointment. The Agriculture nominee will move in to the Deputy’s office, start signing letters as “Deputy Secretary,” and so on. Nobody will stand in the way, because the Department of Agriculture will be run by Democratic appointees.

Then, the next week, the President nominates someone to be a judge on a federal judicial circuit that already has a majority of Democratic-appointed judges, as well as a Democratic appointee as chief judge. We go through the same steps, and 90 days later, the judicial appointee is sworn in with all the customary ceremony, puts on a black robe, and starts deciding cases. Republicans cry foul, but the courthouse personnel go along—remember, the relevant circuit is already controlled by Democratic appointees—and there is no process for removing the person who is now acting, and being treated like, a federal judge. (Impeachment won’t work, because the Senate won’t muster a two-thirds majority to remove someone whom it couldn’t be bothered to block by simple majority vote.) And then, with the precedents established, the president makes the fateful announcement: Ninety days more, and I’m going to start calling Merrick Garland “Justice.”

It’s hard to foresee what might follow. It might not be pretty. And maybe we will never get that far. But whether a continued stalemate into 2017 produced this particular escalation or a different one, the important point is that escalations in the separation-of-powers game are likely to produce further escalations. That’s especially true when the stakes are high and politically important, and even more so in a domain like judicial confirmations, where a pattern of escalation responding to escalation is already underway. All of which raises the premium on getting things resolved before the stakes are raised yet again. We probably don’t want to see the escalations that come next.