Having spent the last year reminding their base that the future of the Supreme Court was at stake in the presidential election, Republicans are now faced with a dilemma. With the prospect of a Donald Trump defeat staring them in the face in 11 days, the GOP must soon decide what, if anything, it can do to prevent Clinton from ensuring a liberal majority on the high court for a generation. The answer for many of them is obvious: an indefinite standoff.

That’s the position taken in the last weeks by a moderate like Senator John McCain as well as a hard-core conservative Ted Cruz. If two such different members of the GOP caucus are willing to say publicly that they plan to do everything in their power to keep Clinton from transforming the court, the odds are the overwhelming majority of Republican senators will join with them.

Although such a strategy is unprecedented, it would be possible provided that the Republicans hold on to a majority in the Senate, though there will be tremendous pressure on more moderate Republican senators to join with Democrats in approving a nominee who isn’t perceived as a leftist ideologue. If, however, the Democrats take the Senate next month, Republican threats will be meaningless.

There are more than enough conservative Republicans for the 40 votes they’ll need to filibuster a vote on any Supreme Court nominee. But doing so will almost certainly prompt the Democrats under their new leader, Chuck Schumer, to invoke the “nuclear option” both sides have talked about. Going “nuclear” would mean changing the Senate rules (something that only requires a simple majority) to end the filibuster tradition. Such a move will deepen the partisan divide and may come back to haunt the Democrats in 2018 when a large number of their incumbents up for re-election. But given the importance of the Supreme Court, that is likely to be a risk they are willing to take.

Yet if Hillary Clinton wins the White House and Republicans hold the Senate, the pressure on McConnell and his caucus from their party’s conservative base to hold their ground will be sufficient to ensure that the Court won’t be back to nine for a long time.

If so, the outcry from Democrats will make their ineffective protests about the stall on President Obama’s nominee Judge Merrick Garland look like a church picnic. They will say, with some justice, that having repeatedly asserted when the Garland nomination was put forward that the voters should decide, Republicans are bound to give in to Clinton. But neither party will meekly surrender the court just for the sake of being consistent.

The work of the Court can go on with only eight members or even fewer if necessary. Though an odd number would seem to be an obvious requirement, the Constitution does not state how many justices should sit on the court. Initially, there were only six. It is only since the Civil War that nine became enshrined, surviving Franklin Roosevelt’s attempt to increase it so as to pack it with liberals who would do his bidding. While the prospect of a growing number of 4-4 ties does prevent the Court from providing clear answers to the country about controversial legal issues, what’s at stake in this dispute is a matter of raw political power; not the judicial workload.

Perhaps in a less partisan era, the idea of an indefinite stall on court nominees would be unthinkable. But as unprecedented as leaving court seats vacant for years would be, there is also no modern precedent for a Senate controlled by one party to allow a president of the other party to alter entirely the ideological balance of the Supreme Court. With the future of free speech, religious liberty, abortion, and gun rights hanging in the balance, Republicans are not going to throw away their beliefs and betray their voters merely for the sake of being considered good sports. Neither would the Democrats if the positions of the two parties were reversed.

The next Senate will hold in its hands the future of American law. Under those circumstances, surrender is never going to be an option for either side. That means that if the Democrats can’t get to at least 50 in November, the Supreme Court will remain stuck at eight until further notice.

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