If Hillary Clinton wins the presidency, she’ll appoint a judge to replace Antonin Scalia on the Supreme Court, ushering in a long era of left-of-center rulings, right?
Maybe not, if Republicans keep control of the Senate. One idea floating in conservative circles would force Clinton to appoint a originalist to replace Scalia – but for it to work, Republicans must have at least 51 Senate seats in the new Congress.
President-elect Hillary Clinton might decide to re-nominate Obama’s nominee, Merrick Garland, or she might decide to appoint her own. She would argue, with justification, that Republicans insisted that the next president nominate Scalia’s replacement, and that the Senate GOP no longer has any excuse for not considering a nominee for the court.
The new Senate could and should meet with Clinton’s pick and hold all of the appropriate confirmation hearings. They should probe and examine the nominee’s past rulings, written opinions, views, and philosophies. And then, because Senate Democrats clearly established in that nominees can be opposed based upon their perceived ideology and philosophy in their votes against John Roberts and Samuel Alito, all Senate Republicans can (and probably will) vote “no” on the new nominee. Clinton’s nominee will rejected, and it will be time for her to nominate another one. Lather, rinse and repeat as needed.
While President Clinton is failing to get her nominee(s) confirmed, there is always a chance that one of the current justices will announce their retirement or – God forbid – die. Ruth Bader Ginsburg is 83 years old, Anthony Kennedy is 80, Stephen Breyer is 78. (Scalia was 79 when he passed.) If another justice departs the court, there wouldn’t be any more 4-4 splits. Depending upon which justice departs (and on Justice Kennedy’s thinking on the cases), you would probably see some 4-3 splits in favor of the originalist view.
Republicans could then go to Hillary with a deal: You appoint the replacement for Ginsburg or Breyer, and select the replacement for Scalia from a list of potential nominees suitable to the Senate GOP. Both nominees would be considered in tandem, get concurrent votes, and probably get broad bipartisan support. President Clinton and the Senate GOP would get credit for bipartisan accord, and the Supreme Court would remain 5-4 or 4-4-wild-card in terms of how many justices generally hew to the original public meaning of the Constitution.