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Last night President Obama announced that he will nominate a replacement in due course. Names are already floating around, and I won’t dwell on the short list here. Senate Republicans have several options of how to proceed.

1. First, Senate Republicans, through Judiciary Chairman Chuck Grassley, can refuse to schedule a hearing between now and January 2017.
2. Second, a hearing can be scheduled, and the committee votes down President Obama’s nominee (whomever he or she may be).
3. Third, the nominee is voted out of committee, but Senate Majority Leader Mitch McConnell refuses to bring the nominee to a floor vote.
4. Fourth, the nominee is brought to a floor vote, and fails to secure 60 votes to be confirmed. At that point, depending how long it takes, President Obama could make another nomination, and the process starts all over again.

As I will explain in a piece to be published in National Review tomorrow, the Senate has no constitutional duty to confirm any nominees (the unanimous decision in Noel Canning proved this point). However, the failure to confirm a nominee may come at a political cost. It is always difficult to predict how different counterfactuals will play out, but I can see a few different paths.

If the Senate Republicans choose door number one,  pressure will mount in fairly short order to take some action. Already, moderates like Lindsay Graham are calling for a “consensus” nominee. Jeb Bush said “it’s “really not important to me” whether there’s a vote before the election. John Kasich said during the debate that a nominee that is palatable to all should be considered. This will build, especially once Obama actually nominates someone.

If the Senate Judiciary Committee holds a hearing, then the pressure to vote up or down on a nominee will become very serious. In recent memory, the only Justice to be voted down by the full Senate was Robert Bork, and even he made it out of committee under the chairmanship of Sen. Joe Biden.

If the candidate makes it out of committee, Senate Majority Leader McConnell will have to keep his caucus strong, and prevent any possible defects who would force him to bring the candidate up for a vote. But at this point, a floor vote looks likely.

If in fact a vote is held, so long as the 60-vote requirement is maintained, Democrats would need to peel off 14 Senate Republicans.

Now throughout all of this, Senate Republicans will be faced with a choice. Moving ahead on an Obama nominee will infuriate the base–especially in an election year. Alternatively, not moving ahead with an Obama nominee may put certain vulnerable seats in jeopardy. I have no idea which risk is greater. But if in fact the Senate is lost, then here is a fifth option that is a distinct possibility.

Assume a Republican wins the White House in 2016, but the Democrats take the Senate. The new Senate meets on January 3, 2017. President Obama remains in office until January 20, 2017, when the new President is inaugurated. There is absolutely nothing stopping Senate Majority Leader Schumer from fast-tracking a nomination for the Supreme Court in the intervening seventeen days. Sure there are committee rules to violate, and other parliamentary irregularities, not to mention the need to invoke the nuclear option for SCOTUS, but all that is feasible. Senate Democrats would have no compunction about doing so if they feel slighted by Senate Republicans who held up Obama’s nominee for 11 months.

From my humble perspective, options number 1 through 4 only work if the Republicans win both the Senate and the White House. If there is a Democratic President and a Democratic Senate on January 4, the entire issue is moot, and Pres. Obama can nominate whomever he wishes.

I close with an insightful essay from Charles C.W. Cooke, who offers some sage advice about the path forward:

Well, because to the average person watching the fight, one seems reasonable and the other does not. This, remember, is a political fight. Certainly, there is nothing in Article II that requires the Senate to move on the president’s recommendation. Hell, there is nothing in Article II that prevents the Court from having an eight-person staff in perpetuity. But, in winning hearts and minds, “no, no, no, no, no!” is a less attractive proposition than “the president keeps nominating candidates who are unacceptable to us, and we were elected to stop that.” As the strategy unfolds, Republicans might think about better honing their arguments. Already, the Democratic party will be able to undermine whatever specific criticisms are likely to be forthcoming by saying, “they were opposed to this guy before he was even named.” Given Obama’s track record, that approach may be prescient; but it’s not especially smart PR.

There are no ideal options for the Senate Republicans, but it is important to understand the different ways this can play out.

Disclosure: I support Sen. Cruz for President.

On Wednesday, February 10, Justice Scalia referred an application for a stay in a death penalty case from (of all places) Texas to the full court. The petition was denied.

Justice Scalia’s last comments from the bench came in the case of Sturgeon v. Frost on January 20, which considered the scope of the Alaska National Interest Lands Conservation Act of 1980. Here is the audio, courtesy of Oyez.

I pray for Justice Scalia’s family, friends, and all those he touched over his many years in public service. This is a terrible loss.

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don’t want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone. We all know where this one is going. Justice Scalia’s dissent in Montgomery v. Louisiana makes this process really, really personal.

In short, the Court rules that the Constitution requires that Miller–invalidating Juvenile LWOP in certain circumstances–must be applied retroactively for post-conviction relief of a murder conviction. (I will come back later to the discussion between Scalia and Kennedy on the constitutional issue.

Using language that harkens to his Obergefell dissent, Scalia specifically refers to the five Justices in the majority (In Obergefell he demoted them to “lawyers.”)

So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sen- tence—until the People’s “standards of decency,” as per- ceived by five Justices, “evolved” yet again in Miller.

The final paragraph of Scalia’s dissent targets Kennedy, directly, for the sophistry I laid out at the beginning of the post.

This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment.

Further, Roper’s decision invalidating the death penalty for juvenile offenders was premised on the availability of life without parole.

After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life with-out parole was a severe enough punishment. See Roper, 543 U. S., at 572.

The same person–let’s call him Tony–wrote Roper, Miller, and now Montgomery.

How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller. 567 U. S., at ___ (slip op., at 17).

Here was AMK’s explanation in Miller three years ago about why it would not impose a “categorical” bar:

By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not con- sider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.

Scalia continues:

So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility.

That is the M.O. of death penalty abolitionists. Make it constitutional, but a “practical impossibility.” Scalia, channeling his Italian heritage, ends with a bang.

And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished.

Let’s hope Justice Kennedy has EZ-Pass in case he ever travels on the New Jersey Turnpike.

In an interview with ABC News, Justice Breyer explained that Korematsu could not happen again. Here is my rough transcript of the interview:

Breyer: Cicero said 2,000 years ago, in time of war, the laws fall silent. That was the Court’s attitude for a long time. That led in World War II, 70,000 American citizens of Japanese origins from being removed from their homes and put in camps. This court in 1944 upholding that without any evidence whatsoever. They upheld it thinking, ‘we can’t run the war, Roosevelt has to.’

Karl: Could it happen again?

Breyer: That they put 70,000 Americans again. I doubt it. This country has developed a stronger tradition of civil liberties.

In a speech at the Unviersity of Hawaii in February 2014, Justice Scalia said just the opposite:

“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime Q-and-A session.

Scalia cited a Latin expression meaning, “In times of war, the laws fall silent.”

“That’s what was going on – the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality,” he said.

Avi Soifer, the law school’s dean, said he believed Scalia was suggesting people always have to be vigilant and that the law alone can’t be trusted to provide protection.

In another account of Scalia’s speech, the Justice explicates this point further–the point of Separation of Powers is to protect individual liberty.

“The function of the court is not to keep the other two branches (legislative and executive) in line; that’s not what we’re for. We’re there to stop harm to individuals,” Scalia said.

It’s remarkable that both Justices cited the latin maxim, with very different conclusions. Breyer’s optimism that we have moved past Cicero’s understanding clashes with Scalia’s pessimism that what was true 2,000 years ago is still true 70 years after Korematsu.