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The Supreme Court could have eight (or fewer!) justices for the foreseeable future.

Merrick Garland’s nomination expired on Tuesday and Mitch McConnell wasted no time in patting himself on the back for doing absolutely nothing for ten months. “I’ve been clear throughout that the next president would name the next Supreme Court justice,” McConnell gloated. “Now, the president who won the election will make the nomination, and the Senate the American people just re-elected will consider that nomination.” With 16 days until Donald Trump’s inauguration, McConnell appears to have outfoxed Barack Obama one final time.

But McConnell’s machinations may backfire yet. Appearing on Rachel Maddow’s show last night, Chuck Schumer said that Democrats plan on using the exact same playbook the GOP used to block their attempt to fill Antonin Scalia’s crucial ninth seat on the Court. “We are not going to settle on a Supreme Court nominee,” Schumer told Maddow. “If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail.” Republicans will need eight Democrats to join them to fill Scalia’s empty seat.

This is heartening, even if it points to what we already know—that the gridlock that has characterized Congress for much of the last decade is not only not going anywhere, but will likely create gridlock in the judicial branch as well. But Democrats have struggled with the hardball tactics that Republicans have excelled at, and Schumer seems to slowly be getting the message: Democrats (and many others!) do not want his caucus to cave to Trump.

Still, this will be a messaging issue. With four years left until the next election, they will have to make the case that the ninth Supreme Court seat belongs to them, while fighting to keep Republicans from filling it.