So…uh, what happens if the Supreme Court is 4-4 until the next president can nominate someone…and the high court has to decide this year if Ted Cruz is eligible for the presidency?
How about if there's a Bush v. Gore style dispute over the election in November?
Or if another Supreme Court Justice dies or steps down? (I guess the answer to that depends on whether we're left with four liberals and three conservatives or four conservatives and three liberals. Whichever it is, everyone's going to have to change their position in a hurry about whether Obama can nominate someone.)
Some legal scholars are saying Obama could make a recess appointment while the Senate isn't working and put a ninth justice on the court if he acts swiftly. There would doubtlessly be legal challenges to this but who would settle it? A tied Supreme Court?
Lastly for now: What if he appointed Bob Newhart to the Supreme Court? Everyone loves Bob Newhart. How could anyone vote against Bob Newhart? Plus, he's 86 so he'd probably die or resign in a year or so, by which time there'd be a new president to appoint his successor. It's a win/win, I tell you.