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How to argue about whether the Senate should vote on Obama’s Supreme Court pick

President Obama is considering who to nominate to replace Justice Antonin Scalia on the Supreme Court. Here are six people he's most likely to choose. (Video: Sarah Parnass/The Washington Post)

If you're like most Americans, your answer to whether the Senate should vote on President Obama’s Supreme Court pick depends on your politics.

According to a new NBC News/Wall Street Journal poll, the American public is split on whether the Senate should vote this year on Obama's nominee to replace the late Supreme Court Justice Antonin Scalia. Senate Republican leaders have drawn a line in the sand, saying that the vacancy comes so close to the end of Obama's term they don't want him to submit a nominee and that it would be fairer to wait for the next president to name a replacement. Forty-two percent of Americans agree with that reasoning, while 43 percent of respondents think the Senate should vote on Obama's pick.

Unsurprisingly, those opinions break down along party lines. Eighty-one percent of Democrats want a vote this year; 81 percent of Republican want to wait.

While the president says he will live up to the obligation of his office and submit a nominee, some Republicans say there shouldn't even be any hearings scheduled, effectively blocking the nomination from moving forward. Senate Republicans, however, aren't completely united when it comes to just ignoring Obama's nominee; it looks like there's some dissension in their ranks. One thing is clear, though: What they decide will most likely have near-term political implications, long-term judicial ones and consequences yet foreseen.

No matter which side you're on, here's how to argue about whether Senate Republicans should vote on Obama's Supreme Court nominee, in three succinct arguments:

Argument No. 1: What do the rules say?

President Obama said he would nominate a Supreme Court justice despite warnings from Senate Republicans vowing to block the eventual nominee. (Video: Reuters)

Yes, they should vote: It's senators' constitutional duty to vote on a nominee.

In Obama's own words, "Your job doesn't stop until you're voted out."

Indeed, one of the few things the Constitution says about the process of confirming justices to the Supreme Court is that the Senate is required to weigh in: Article II, Section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

We're not even saying Senate Republicans need to approve Obama's pick -- they probably won't -- just that they should officially consider him or her.

Even some high-profile Senate Republicans appear to be indicating that going forward with confirmation proceedings is the right thing to do. On Tuesday, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) declined to rule out hearings on a nominee, report The Post's Mike DeBonis and Juliet Eilperin.

No, they shouldn't vote. It's too late in the game, and there is nothing requiring action.

The Constitution does not say much more than that, notes Cornell University Law Professor Josh Chafetz. There's no timeline nor guideline for how to hold confirmation proceedings. The Constitution doesn't even say how big the court needs to be; over the course of history there have been as few as six justices and as many as 10, notes Eric Black with Minnesota's So it's not even technically a "vacancy."

Can Republicans really block Obama's Supreme Court nominee for a year? Probably.

In the absence of our forefathers' guidance, it's up to us to decide what works best. Since the late 1960s, senators have made it a practice of not considering the president's Supreme Court nominee in the last few months of his term -- the argument being a lame duck president shouldn't get to decide who sits on the court for a generation. It's called the "Thurmond Rule" after the first senator to do such a thing, Sen. Strom Thurmond (R-S.C.).

Politicians on both sides have pulled out the rule, which isn't really a chamber rule but has been observed regularly. That's led to flip-flops by Democratic Senate leaders on whether the rule really exists and its application to today's confirmation battle.

All that may be moot, says Russell Wheeler, a judicial expert with the Brookings Institution who points out that because Republicans are in the majority, they can simply decide not to hold a hearing or a vote on Obama's nominee because they think it's not fair. There's no rule or article in the Constitution stating otherwise.

Argument No. 2: What's the politically smart move?

Washington Post reporter Juliet Eilperin explains the difficulties ahead facing both Republicans and Democrats as they battle to fill the vacant Supreme Court seat left by the sudden passing of Associate Justice Antonin Scalia. (Video: Dalton Bennett/The Washington Post)

Yes, they should vote: Republicans don't want to come across as obstructionists.

Hours after news broke that Scalia had died, and many days before we know who Obama will nominate to replace him, Senate Majority Leader Mitch McConnell (R-Ky.) sent out a statement that many interpreted to mean the Senate wouldn't even consider Obama's replacement. That kind of talk risks coming across as needlessly partisan, argues The Fix's Chris Cillizza: "The 'advise and consent' role for the Republican-controlled Senate means the chamber can and should ignore a presidential pick to serve on the country’s highest court? That’s not going to ring true for most people."

It certainly risks making life more difficult for the roughly eight vulnerable Senate Republicans seeking reelection in November -- many of whom are running in swing or blue states and risk alienating potential centrist voters with this hard-line stance.

President Obama's 3 options for his Supreme Court pick

No, they shouldn't vote: Independents don't feel strongly, and the GOP base would revolt.

Despite all of the above, nearly all of those GOP candidates have sided with McConnell's move to delay. In addition to the argument that filling this vacancy shouldn't be Obama's choice, their calculation could be that any nominee Obama picks will will put them in a politically awkward situation -- a historic minority candidate, for example, or a moderate one who has previously won the Senate's approval -- so it's just easier to avoid proceedings altogether.

5 possible Obama Supreme Court picks that could make Republicans squirm

Or perhaps the reality of a divided America registers with these senators. As the rift that separates the parties expands into a canyon, elections are increasingly won with party loyalists. And according to that NBC/WSJ poll, 81 percent of Republicans think the Senate should consider the next president's nominee -- not this president's.

Meanwhile, as we mentioned earlier, the public at large is split. That would seem to indicate the average person isn't too invested in how long and when the vacancy gets filled. In other words, is the political fallout for Republicans stalling Obama's nominee really going to be all that intense? Possibly not.

Senate Republicans will never hold a Supreme Court vote this year. This poll shows why.

Argument No. 3: The vacancy's impact on the court

Washington Post reporter Robert Barnes explains where the Supreme Court stands after the death of Justice Antonin Scalia and how the vacant seat will impact the presidential election. (Video: Whitney Leaming/The Washington Post)

Yes, they should vote: Leaving a seat vacant for more than a year would be unprecedented and untenable.

It could deadlock the court 4 to 4 on major election-year decisions on abortion, immigration, affirmative action and much more, throwing the decisions back down to the lower courts (which skew blue but in some cases have sided with Republicans.)

What's more, tradition dictates that a senator's personal politics really shouldn't come into play in the confirmation process. In its simplest form, the measures for confirming a nominee should be: Is the person good, fair and legally qualified?

Obama this week said: "This is the Supreme Court, the highest court in the land. It's the one court where we would expect elected officials to rise above day-to-day politics."

No, they shouldn't vote: This nominee could tip the balance of the court for years or even decades. It's too important for a lame duck president.

Let's be real here: Presidents don't pick justices who don't agree with them on key issues. Politics has injected itself into who a president chooses to be on the Supreme Court for decades now. Obama is likely to choose someone who fits into his worldview. But that's a worldview that isn't going to be leading our country for much longer.

In the words of the Judicial Crisis Network, a conservative-leaning advocacy group: "Let the people decide."

"This isn’t about Republicans or Democrats, it’s about your voice," says the group's ad, which is running in states where some vulnerable senators have sided with waiting until next year for a vote. "You choose the next president. The next president chooses the next justice."