If the Democrats get control of the Senate, do they follow the McConnell strategy of shutting down the confirmation process, and treat Trump the way McConnell treated Obama and the Scalia vacancy? One would be tempted to say yes, but one of the interesting tidbits in the Senate is that Schumer keeps cutting deals with McConnell to confirm judges. If you haven't been following the inside stuff in Congress, you miss this stuff because in normal times, confirming judges is normal. Right now, it is weird because one would expect the same kind of scorched-earth opposition from Democrats that Republicans showed towards Obama. Does this mean that a Majority Leader Schumer would be more conciliatory?
Possibly, but there are a few other things going on. First, a unified Republican Senate can confirm anyone, so there isn't much payoff to scorched-earth opposition if you can't actually block anyone's confirmation. The deals Schumer has cut have been effectively minor. Whether they are wise or not, that's a separate question, but they may not be indicative of what he'd do as Majority Leader. As Majority Leader, he'd be under a hell of a lot of pressure to go McConnell on Trump. And certainly if Ginsburg dies, as she probably will (remember: she was very stupid not to do what Kennedy just did, when Obama could have named her replacement under a Reid-controlled Senate), Trump won't be able to name anyone who isn't Federalist Society-approved, and a Democratic-majority Senate won't be able to confirm him. I won't bother with gender-neutral language here.
What is the effect of this, though? The conservative majority is already 5-4 on the Supreme Court. What is the difference between a 5-4 majority and a 6-3 majority? The differences are twofold. First, how long before Clarence Thomas bites the big one? And by that, I don't mean Toad. Toad ain't that big. It is a question of how long-term the majority is. The second question is Roberts. Roberts will nearly always vote with the conservatives. Not quite 100% of the time. Remember NFIB v. Sebelius. He can surprise you once in a while, and in general, he prefers to issue conservative rulings on more limited grounds, but if Ginsburg croaks and Trump uses a Republican Senate to replace her with, I don't know, Roy Moore (that's the logical progression from plagiarist to rapist, right?), Roberts becomes irrelevant. How much does that matter? Depends on the case, but right now, it's still a pretty stable 5-4 conservative majority.
How big are those stakes? Well, the long-term stability of the conservative majority goes away if the Democrats go through with court-packing after getting unified control in, say, 2024, and I've been predicting court-packing for a while now. As far as I'm concerned, the Supreme Court is irreparably broken anyway. And Roberts? He's pretty reliably conservative, give or take an NFIB v. Sebelius.
My point is that once Trump got the plagiarist and the rapist on the Supreme Court, giving the conservatives their solid 5-4 majority, the potential additional gains for them went down. That means the stakes for nominations, in the short-term, went down. This game, for the short-term, has been won by the Republicans.
And of course, the Senate is nearly a lock for the Republicans right now anyway. It's the House that's the real battlefield.
So, what's at stake? Oversight? Subpoenas? That kind of stuff? More to come...