This gives Obama a few paths to go down that could make Republicans squirm. He could choose a groundbreaking liberal nominee who might rally the Democratic base to go to the polls in November, betting a Democratic president and Senate can put him or her on the court come January. Or he could choose a more moderate pick, perhaps even a Republican senator or governor. And that would put Republicans in an awkward spot to dismiss the pick outright.
The politics of this confirmation battle are so precarious for Republicans, who are trying to hold onto the Senate, that some leaders, like Senate Majority Leader Mitch McConnell (R-Ky.), are suggesting not even considering Obama's nominee. The argument here goes that it's unfair to the American people to give a late-term president a shot at filling a lifetime court appointment that could tip the balance of the court for a long time to come.
That strategy carries its own risks. The Fix's Chris Cillizza thinks telegraphing such a seemingly blatantly political act so publicly could hurt their cause. That could help explain why there's dissent in the ranks about whether to hold hearings or vote for Obama's nominee.
Long story short: Whatever Senate Republicans ultimately decide, they're likely to pay a political price for it.
You can be sure they'll calculate that all the pain is unquestionably worth it if they can win the White House and keep control of the Senate. Then they can ostensibly achieve a political trifecta: a Republican White House, Republican Congress and a clearly conservative Supreme Court.
A little imagination and American Government 101 helps explain how. Let's imagine two scenarios based on the do-they, don't-they choice before Senate Republicans right now.
One: Obama suggests a consensus nominee, and Senate Republicans agree to hold hearings and even a vote. Somehow, miraculously, 14 Senate Republicans join with all 46 Democrats too allow an up-or-down vote and an eventual confirmation. The court is back to its 5-4 ideological split before conservative Justice Antonin Scalia died, only this time it's five liberal-leaning justices and four conservative justices.
Two: The Senate Republicans either refuse to consider Obama's nominee or consider the nominee but don't approve him or her. Republicans successfully argue the Senate should wait until a new president can suggest a nominee next year. (A new NBC/Wall Street Journal poll suggests 81 percent of Republicans and 42 percent of Americans would be amenable to that argument.)
Let's fast-forward to January under that scenario and imagine Republicans' political dreams come true — there's a Republican president in the White House and Republicans have maintained control of the Senate.
First thing, the GOP president nominates someone to fill Scalia's vacancy. The court is back to its 5-4 conservative tilt. Then, sometime during that president's first term, there could be long-awaited vacancies. The most likely slots to open up, judging by the ages of the justices, would be two liberal members — Ruth Bader Ginsburg (82) and Stephen Breyer (77) — and the court's erstwhile conservative-leaning swing vote — Anthony Kennedy (79). No other member of the court is more than 67 years old.
"There's a decent chance that happens before 2020," said Josh Chafetz, a law professor with Cornell Law School who helped The Fix game out this theory.
Suddenly, Republicans have the option to swing the court to 6-3 or even 7-2 on their side. By the end of their president's first term, they have a Republican White House, a Republican Congress and a clearly conservative-leaning Supreme Court. If you're a Republican, you simply can't ask for more of a dream scenario.
And the crazy thing is, such a happy ending for the GOP is not out of reach. (On the flip side, this isn't out of reach for Democrats either if they can win the White House and take back control of the Senate.)
Right now things look bleak for Republicans in this confirmation battle. They're put on the defensive at every turn. But if they can hold out and play their cards well enough to win in November, things will look a lot rosier for them. A lot.
That's why whatever Senate Republicans decide on the confirmation battle before them, don't expect them to back down — no matter how painful things may get in the short term.