Ari Melber of NBC News argues that “even if the Senate refuses to confirm Obama’s pick and a Republican wins the White House, there is one way Obama can still get his nominee confirmed.
“It could all come down to 17 crucial days in January.”
“If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.”
“So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.”
“Democrats could apply the ‘nuclear option’ to Supreme Court nominations, and vote in Obama’s nominee by a simple majority.”
“The prospect of a January power play sets up a potential alternative outcome — where the Supreme Court vacancy actually turns on the result of the Senate races.”
“In fact, if Republicans completely block a ‘consensus’ Obama nominee all year and then lose the Senate, Obama might be tempted to appoint an even more liberal replacement for Scalia in January.”