u/DooomCookie

Matt Glassman wrote an interesting article that I recommend everyone read in full:

How do you blockade-run a Senate majority?

To summarize:

• Senate confirmations for SCOTUS have become increasingly partisan. The Garland nomination in 2016 was "blockaded" by the Senate, and confirmations votes since then have been close to party-line. The presidency and senate have not been in divided control since 2016, but it's likely we'll see more blockades where no or very few appellate nominees can get senate confirmation.

• However, as Glassman points out, a vacancy does not have to exist for the president to nominate and the senate to confirm someone.

  > There’s no requirement that presidents wait for vacancies to arise in order to make nominations, or for the Senate to confirm those nominations. In fact, this regularly happens in both executive branch and judicial nominations. ... Supreme Court retirements can be—and have been—conditioned on the successful confirmation of a successor. And there’s decades of case law to back this up.

• Confirmed nominations can be left indefinitely and will never "expire".

  > A second question is whether the president can delay signing a commission for a Senate-confirmed nominee. Again, the answer is yes. The president is under no obligation to ever actually appoint someone who they have nominated and the Senate has confirmed. Until the president signs your commission, you do not hold the office and the president retains full discretion to appoint or not.

  > Past practice has been that presidents can and do sign commissions and make appointments for nominations that were confirmed in the previous Congress. A search of the Federal Judicial Center biographical database reveals eight cases in which a judge confirmed in one Congress was commissioned by the president in the next Congress. This includes five contemporary judges nominated by President Biden, confirmed by the majority-Democratic 118th Senate, and commissioned during the early days of the Republican-controlled 119th Senate.

This means, for example, Republicans could nominate and confirm e.g. Judge Oldham for the Supreme Court today, to try to persuade Justice Alito to retire. (Alito is the topical example, but of course this could apply equally well to Ginsburg, Kennedy, Breyer, Thomas, Sotomayor etc.) And with this "pre-confirmation" in place, Alito could retire at any point — even with a Dem majority in the Senate* — to be replaced by Oldham. All that is needed is a president willing to sign the Oldham's commission.

I don't really expect the Senate to actually do this for Alito or Thomas, but I could see it becoming the norm some day. The winners from this practice would be the justices, who get peace of mind to stay on the court for longer and more leverage in choosing their preferred successor. The losers would be the Senate and the spirit of bipartisanship.

* The Senate has never tried to reverse a confirmation, see FN3 of Glassman's article