The current Supreme Court features one octogenarian, three septuagenarians, two sexagenarians and three justices in their 50s. There have been some close confirmation battles to fill recent vacancies and -- compared with most history of high court nominations -- an increase in partisan/ideological voting.
As Jonathan Chait notes for New York magazine, in the last confirmation (of Elena Kagan, the current youngest justice at age 53) only five Republican senators voted to confirm her. Three of those five are now gone from the Senate and one of them -- Richard Lugar of Indiana -- was defeated for renomination by his own party in part to punish him for that vote.
As Ian Millhiser writes for ThinkProgress, the price paid by Lugar raises the likelihood that any Republican senators voting to confirm any future Obama nominees to the high court would be risking their political lives.
If, after January, Republicans take control of the U.S. Senate, and if, during the last two years of Obama's presidency, a vacancy should occur on the court, what are the odds that any Obama nominee could be confirmed?
If Republicans united to deny a Democratic president the power to fill a vacancy, and taking into account the degree to which Supreme Court nominations have been thinly disguised votes on the future of highly-ideological and partisan issues such as abortion and campaign finance regulation etc., what are the chances that future Senates would behave differently if the president was of a different party than the Senate majority?
We aren't talking about filibusters here. It's true that when the Senate recently exercised the famous "nuclear option" to allow most appointees to be confirmed with a majority vote, the Senate left alive the power of filibusters in the case of Supreme Court nominees. But as that new rule was imposed by a majority vote, the rule easily could and probably would be extended to Supreme nominees if the need arose.
So the question is whether we are soon to enter a new era in which Supreme vacancies might stay open indefinitely until the same party controls the Senate and the White House or until some other kind of unprecedented new arrangement could be made.
Yes, by tradition it is not supposed to work this way. By tradition, the Senate has generally accepted qualified, scandal-free nominees even if they were from the "wrong" side of the partisan/ideological split. But the Constitution has no such requirement. And yes, the business of rejecting nominees on ideological grounds probably derives most clearly from the liberal rejection of Reagan nominee Robert Bork. So I'm not blaming this on the current Senate Repubs.
But in the new system of partisan/ideological warfare, how likely is it that the Supreme Court might be short a justice or two or three or four, when the president and the Senate majority are of different parties?