Let's assume that Clinton wins but the GOP retains the Senate, which the polls suggest is the most likely outcome right now. What's the likelihood that Clinton will get her justices confirmed? Will the GOP obstructionists hold the court hostage in perpetuity?
The GOP got away with delaying Obama's pick to replace Scalia--arguing that it was too contentious to take it up during election season--but they're going to have to fill the vacancy sooner or later. If Republicans lose the Senate, they'll quickly move to confirm Garland. If they don't, they'll fill the vacancy in the next term.
The Republicans in the Senate have boxed themselves in to shutting down the confirmation process for Supreme Court nominees if they can, and probably for lower court nominees as well. If Clinton is faced with a Republican controlled Senate, they will continue to do as they've done. At some point Clinton will be forced to announce something along the lines that it is her position that the failure to schedule a vote or even hearings amounts to consent to her appointments within the meaning of the Advice and Consent clause, and that her Supreme Court and lower Court nominees who have been waiting more than 90 days for a hearing to be scheduled will take their seats immediately. How things play out from there is a bit of a mystery. Essentially the Republicans will force a constitutional crisis because they're too scared of their base to do otherwise.
Well that's certainly unconstitutional as fuck. Non-consent = consent! She would be impeached and removed, which is Constitutional.
I may have to fly over for meetings to coordinate their nuclear strikes on the blue cities, but as of yet I haven't been given any travel orders.
Right now, FiveThirtyEight has a 50/50 split as the most likely outcome. Regardless, though, senators aren't as easy for party leadership to control as House members are, and there are at least a handful of Republicans who would not go along with endless obstruction. Jeff Flake has already gone on record supporting a vote on Garland. Susan Collins and Lindsey Graham won't go the obstructionist route, and will probably vote to confirm as well.
100% The GOP can't hold a unanimous position on it under public pressure, NO WAY they hold a spot (or more than one) open for 4 more years, and once the concede that point then the damn breaks.
Assuming the GOP maintains a majority, they will eventually confirm Clinton's nomination, but it won't be pretty. Assuming the GOP loses the Senate, they will probably speed up Garland's confirmation process, but there's a small chance they will just defer it for the next Senate rather than face the possibility of confirming Obama's nominee. Assuming tomorrow's election turns into a full Game of Thrones-esque bloodbath, this is the likely outcome:
I hope they can Bork the fuck out of her. We could have had a Bork, but we end up with sub-mediocrity named, e.g. Sotomayor. [Liet might have made as good a jurist; pick a few clerks from Harvard every year and keep your head down, vote liberal and smile stupidly.] Everyone can achieve (good message) and don't let mediocrity interfere (rots away the inside without seeing it). Good on America, Benetton over substance.
Why the obsession with putting Harvard Law graduates on the Supreme Court anyway? Other places such as the University of Chicago and Stanford have law schools that are arguably just as good.
