Jeff Greenfield points out something rather remarkable:
... the [Clarence] Thomas nomination was the last time a President of one party offered up a nomination to a Senate controlled by the other party.That means it's been 23 years since a Senate controlled by one party approved a Supreme Court nominee from the other party's president. (Bill Clinton and George W. Bush seated two justices each before their respective parties lost Congress, and Barack Obama seated two early in his term as well, when Democrats had a larger majority than they do now.)
Is it even possible in the current climate for a Senate to approve a High Court justice across party lines? Or, more specifically, is it possible for a Republican-controlled Senate to approve a Democratic president's pick? Could that even happen in a Democratic Senate in which Republicans have access to the filibuster?
(As Greenfield notes, Republicans can't filibuster lower court nominees anymore, thanks to Harry Reid's filibuster reform, but the filibuster is still available for Supreme Court picks.)
Greenfield notes all this in order to point out that it would have been difficult -- probably impossible -- for President Obama to replace Ruth Bader Ginsberg even now, if she'd chosen to retire early, and it will almost certainly be impossible after this year's midterms, even if Democrats continue to hold a small majority in Senate:
Now ask yourself a question about today's Senate: How many of the 45 Republicans now in the Senate would break with their party and vote to end a filibuster of an Obama Supreme Court appointment? How many would risk a Tea Party primary opponent, or a talk radio onslaught, and step away from a fight to stop Obama from putting a pro-choice, "living Constitution" Justice on the Court for the next generation?I assume the gap will go beyond that, unless Democrats hold the Senate in 2014 and/or 2016 and the leadership eliminates the filibuster for High Court picks as well. Republicans are going to hate President Hillary Clinton as much as they hate President Obama. They're going to consider her just as radically socialist, just as lawless, just as threatening to Freedom and the American Way Of Life. They'll block her picks -- unless she capitulates and chooses a right-winger or right-centrist. (Would she do that? Would Obama?)
And if that meant leaving the Court with only eight justices -- or seven, should a second vacancy develop -- the Republican minority would be more than happy to live with that. There's nothing that requires the Congress to fill all nine positions on the Court.... Given the zeal with which the Republican base argues that Obama is a lawless, Constitution-shredding chief executive, it is an easy step to argue that we should wait until a new chief executive is chosen in 2016.
If this analysis is correct, then what happens in November almost doesn't matter. Yes, a Republican Senate takeover would give the GOP control of the Judiciary Committee, which means that all federal judicial nominations might die a slow but certain death. But even if the Democrats hold the Senate -- even if, by some hard-to-imagine turns of events they kept their 55-seat majority -- the likeliest outcome of any Supreme Court nomination is a filibuster and a vacancy or two that will endure until the country chooses a new President.
I've said this a lot on this blog: I think there's a fairly strong possibility that a Democratic presidential win in 2016 could mean an eight-, seven-, or even six-member Supreme Court by the end of that president's term. It's going to get uglier. And America is still in denial about the extent of Republican extremism.