Sarah Binder isn’t so sure:
[E]ven in recent periods of divided control, the opposition party has been willing to confirm roughly half of a president’s appointees to the bench — not least because such nominees are often favored candidates of opposition party senators. (And as I noted here, even after Democrats banned judicial and executive filibusters, Republican senators voted to confirm most judges even after opposing them on cloture.) This fall, for example, Obama nominated a Utah judge to a federal district court bench with the glowing support of Republican Sen. Orrin Hatch of Utah. Perhaps a Republican Senate will leave advice and consent in tatters, seeing little gain to filling seats better left open for a Republican president. Still, I wouldn’t be surprised to see Republicans leverage their majority power to continue to secure lifetime spots on the bench for judicial candidates well known back home.
Jeffrey Rosen imagines what would happen if a Supreme Court justice dies or retires. His “optimistic” scenario:
Democrats can point to bipartisan Supreme Court confirmations, like justices Clarence Thomas and Antonin Scalia, where they have voted for nominees with whom they disagree. And there is next to zero historical evidence of gridlock causing extended vacancies (although that could be plausibly chalked up to the fact that we didn’t experience divided government very often in the early years of the republic). Even Obama himself, in a recent interview with The New Yorker, suggested there would be pressure for Republicans to approve a nominee, saying that intense media coverage of SCOTUS nominations “means that some of the shenanigans that were taking place in terms of blocking appointments, stalling appointments [to the lower courts], I think are more difficult to pull off during a Supreme Court nomination process.”
On the other hand, there’s no particular grounds for optimism with a Democratic president and Republican Senate. With their vitriolic obstruction throughout the Obama presidency, including a fight over the debt ceiling and a government shutdown, some Senate Republicans have shown a willingness to paralyze the basic functions of government—and might be comfortable with an evenly divided Court of eight justices, which could mean repeated 4-4 deadlocks and opinions that lack precedential value.
Earlier Dish on the subject here.
The Dish 