Over the weekend, I asked what would happen if the Supremes have an opening in the next couple of years. A filibuster (or outright defeat, if there are 51 Republican Senators) seems inevitable to me and most of the people who responded, summed up by commenter JazzBumpa who supposed that the GOP would filibuster Robert Bork's clone if Barack Obama sent him up.
Nor is it really plausible that Obama would nominate someone that conservatives like. He'd be inviting a relatively serious primary challenge (I hear Russ Feingold might be looking for something to do, and he strikes me as the kind off pol who would do it).
The obvious compromise, suggested by commenter Kylopod, would be to pick someone old. Would Republicans be willing to vote for Hillary Clinton (b. 1947)? Still on the youngish side, no? She could easily last a couple of decades on the Court. So, here's the likely short list:
Walter Mondale, b. 1928. At last, a Protestant!
Abner Mikva, b. 1926. He's been confirmed before!
George Mitchell, b. 1933. Ethnic diversity.
Mario Cuomo, b. 1932. Bonus attraction for the GOP: might take three or four years to decide whether to accept appointment or not.
Jerry Brown, b. 1938. OK, he's a bit young -- but he's goofy enough that he might not be a reliable liberal vote on everything, but most liberals would still be happy, and besides if he wins then California Republicans could get rid of him.
Hey, I'm not joking -- well, except for the Jerry Brown part; I'd rather see the other Jerry Browne on the Court. Odds are that there won't be an opening in the next couple of years, but it's hard to see any other way out of a stalemate if there is one. And even then, I'm not sure that 41 Republicans would let anyone go, no matter how old they were.
The larger issue is what's going to happen to the other judicial nominations. Will Republicans simply roadblock everyone, at least at the Circuit Court level? If so, and if Democrats maintain a small majority, will Dems threaten a nuclear option? Will they work out a deal? If not, would the Democrats really just end the filibuster by a simple majority vote? What if Republicans control the Senate? Would they even allow any nominee out of committee?
It's hard to believe that we'll just go two years without filling any judicial vacancies. Isn't it? But I'm finding it hard to see any incentives for Republicans to compromise. Sure, they wouldn't want their own nominees spiked in the future -- but that's not going to cost any Senator reelection, and furnishing the winning votes to put an Obama nominee on a Court of Appeals could just do that in a primary.