The automatic rejection of a new nominee will leave the Court with a vacancy for a year. While there have been longer vacancies, keeping a vacancy open when it could be filled impairs the functioning of the Court unnecessarily. If the idea of letting the sitting president fill a vacancy on the Court is so horrifying, that should make us question the wisdom of lifetime appointments to the Court. It should worry us that the Court is so powerful that any change in its composition is viewed with such alarm. Another Obama appointment would shift the balance of the Court for a time, but it probably isn’t going to stay that way for long. Conservatives might also consider that Republican appointees have made up the majority of the Court for decades, and it still hasn’t done many conservative causes much good.I agree with all of this. I have many times heard progressives say that it would be good for the Democratic Party to lose some Presidential election or another, "except for the Supreme Court." The thought of another Republican appointee to the court is the one thing that will rally progressives to any Democrat, no matter how much they despise him or her.
Senate Republicans are also taking a big gamble insisting that they won’t approve Obama’s nominee, since they may find in a year’s time that they are out of the majority and another Democrat occupies the White House. In their very public and immediate opposition to even considering Obama’s nominee, Senate Republicans may be unwittingly aiding the other party in the presidential election and in a number of close Senate races that they have to win to retain the majority.
That Supreme Court appointments matter so much in our system strikes me as a serious problem. Why are so many of our most important political issues decided by un-elected judges? I do understand that this is a product of our Constitutional system with its divided powers, and the federalism that leaves many policies to the states. But it bothers me that we leave things for the court instead of having them out in elections, partly because it is just easier. It is also elitist, and though I sometimes shudder at the foolishness of American voters (e.g., flag burning) I am still not comfortable with letting nine lawyers from Harvard and Yale overrule them.
Since we seem to be stuck with a very powerful court, I think changing the Constitution to give the justices fixed terms seems like a good compromise. The plan for 18 year terms, so each President appoints two, seems workable, although with such long terms there are still bound to be some deaths in office. But it seems we ought to do something. Maybe a long, ugly fight over this nomination will persuade a lot of people of that.