The death of Supreme Court Justice Antonin Scalia and the immediate response from Republicans that there would be no replacement allowed under this president has at least done one thing: it's reminded the traditional media that Republicans have been blocking President Obama on his judicial nominations at an unprecedented rate.
Since Republicans took control of the Senate in January 2015, the process that would enable Mr. Obama to fill vacancies on the 12 regional federal courts of appeal has essentially been halted. Mr. Obama has managed only one appointment because Republican senators have refused to sign off ahead of time on nominees for judgeships in their states—a traditional step before a president makes a nomination.
In the weeks before Justice Scalia’s death, influential conservative groups and commentators called on Senate Republicans to ensure that Mr. Obama appointed no more appeals court judges.
The one appeals court judge finally approved was Luis Felipe Restrepo, a District Court judge in Philadelphia. He was only approved after Pennsylvania Republican Sen. Pat Toomey’s blocking of his consideration in the Senate became a campaign issue. Toomey reversed course and had been pleading with Mitch McConnell for weeks to give him a vote. Once that was finally done, the gate was shut tight against any more. Including Supreme Court Justices.
There's a reason for Republicans to put a stop to this president naming any more appeals judges—not a good reason, but a practical, political reason. Supreme Court justices generally are named from the ranks of the appeals courts. More Obama-appointed appeals court judges, more of an opportunity for one of them them rise in the ranks. They can only hope to hold onto the Senate and to gain the White House to ensure that any Obama legacy in shaping the courts is thwarted.
As others have pointed out, this vacancy favors liberals, but the next likeliest departures—Ruth Bader Ginsburg, Stephen Breyer and swing-vote Anthony Kennedy—could put the court in a very scary place if the next president is a Republican. Or if the Senate stays in Republican control.
That's why, as David Nir wrote here, there has to be a credible threat now from Sen. Chuck Schumer, the next Senate Democratic leader, to end the filibuster for the Supreme Court when Democrats retake the chamber. It's the one thing that could move McConnell to lift his moratorium on votes for nominations—the threat that Democrats retake the Senate in 2016. If that happens and Democrats keep the White House, there goes the Supreme Court for a generation. And McConnell would be powerless to stop it. That threat from Schumer now could force McConnell to allow this nomination and confirmation to move forward.