Justice Stephen Breyer has announced that he will retire after nearly 28 years on the Supreme Court bench. Whatever one thinks of his opinions, philosophy and general influence as a Supreme Court Justice (it was generally mischievous) he is entitled to at least the respect and honor that comes with holding such an august post and deserves best wishes for a happy and healthy retirement.

His departure ignites that periodic American political sport, the Supreme Court nomination process. SCOTUS nominations were typically pretty vanilla affairs, even as the Court gradually became the single most influential entity in American government, up until the nomination of Robert Bork. What Sen. Edward Kennedy said of Judge Bork ought to have ejected him from the councils of civilized speech. And that pales in comparison to what is routinely said today, the nominating circus having degenerated into the appalling spectacles witnessed during the Kavanaugh and (to a blessedly-lesser extend) Barrett hearings.

This is not an exclusively partisan phenomenon – Senators from both parties have reduced the affair to a sort of free for all of litmus tests, character inquisitions and rambling campaign speeches masquerading as questions of the nominees (then-Sen. Joe Biden was particularly good at that); but as a general rule, at one time, Democratic nominees tended to be treated with less viciousness by Republican Senates than Republican nominees experienced at the hands of Democratic ones. That likely owed to the traditional conservative temperament once clung to by Republican senators – which, while disdaining the contempt to which the liberal nominees held the letter of the Constitution, still respected the process outlined in that document, and the institutions it protected, enough to largely let it play out.

It was the more radical, change-everything-tomorrow liberals who were more prone to discarding norms and customs as antiquated formalities that served as impediments to progress and social advancement. Today? It is reasonable to ask if those distinctions remain intact, and if in the current climate enough Republican senators retain that traditional sense of order and decorum in the course of pressing vigorously for constitutional fealty.

In any case, this round will be interesting. Not because it will change anything – Breyer was a liberal justice who will be replaced by a liberal justice. But a 50-50 senate, with an election year as a backdrop, adds a bit of a twist. Conventional political wisdom suggests that President Biden gravitate toward the center for his pick, something the President has shown no proclivity for doing in any other arena since being elected. He will nominate a liberal (apparently one with very specific immutable traits), but how liberal? And does it matter?

It seems unlikely that it will be one in the temperamental mode of Justice Breyer. Breyer was one of the last of the institutional liberals, a reliable leftist vote, but with a pragmatic edge. He was not reflexively anti-business or anti-law enforcement. His respect for institution compelled him to stand up against the notion of court-packing, which earned him the ire of the hard left. Nevertheless, there was no mistaking his political bent and partisan loyalty. He was put out there as a “moderate” by Bill Clinton, mostly on the assurance that he would not be a categorically dogmatic opponent of the death penalty; then once on the bench was a categorically dogmatic opponent of the death penalty.

In practical terms, it makes little difference whether Biden nominates an old-school, institutionalist liberal or a revolutionary progressive. Conformity to doctrinal orthodoxy is a hallmark of liberal jurists, and the votes, for the most part, will reflect that.

A great deal has been made already of Biden’s rather specific prerequisites for the nomination, and much of the criticism of it, like that offered by Tulsi Gabbard, is reasonable and warranted. At the same time, one must allow that such criteria are unavoidable. George H.W. Bush’s insistence that Clarence Thomas’ race was “not a factor” in his selection, for instance, was on the order of saying that Cleopatra’s body was not a factor in her selection by Antony.

But it is regrettable that that will almost exclusively dominate the discussion revolving around the nomination of the next Supreme Court Justice. It would be far better if the discussion were instead focused on juridical philosophy and the role of the court. It won’t change the outcome – Biden will nominate someone who believes that, one, it’s impossible to really know how the Founders would have interpreted their own Constitution and, two, even if the meaning leaps off the page in bold print, if five justices say it means something else, then it’s irrelevant. But the discussion is worth having nonetheless, even as a purely didactic enterprise. Because America can either be self-governing, or governed by the court – not both.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.