If Republicans re-take the Senate in November (as seems increasingly possible) it could force President Obama to try and repeat a feat last achieved in 1895: Moving a Supreme Court pick past a Republican Senate as a Democratic president. In fact, the only Democratic president ever to accomplish that was Grover Cleveland — on two non-consecutive occasions.
Obama having to get a nominee past Senate Republicans "is a rare political conjunction/junction," Gerard Magliocca wrote at the Balkinization blog on Wednesday. It was Magliocca that pointed out the 1895 date, which prompted The Wire to look at how many times Supreme Court picks had been introduced by a president of one party and approved by a Senate controlled by the other party.
The chart below shows the number of years in which one of five scenarios occurred: a Democratic president and Democratic Senate, a Dem president and Republican Senate, a GOP president and GOP Senate, a GOP president and Dem Senate, and any other combination (including old parties).
The most interesting column is the second one in the second cluster, those two Supreme Court appointees that Cleveland got past Senate Republicans. Republican presidents have a lot more experience at this: six different Republican presidents got 12 nominees past Democratic Senates. The vast majority of nominees were proposed by a president of one party and approved by a Senate of the same party.
But you don't have to take our words for it. The chart below shows White House and Senate control from the dawn of the Republic, with each Supreme Court appointee marked with a dot. The 14 people who were approved by a split administration / Congress are called out.
Magliocca's point wasn't only a history lesson. He was pointing out that an Obama-versus-Mitch McConnell Supreme Court nomination battle would be highly unusual and would happen at a moment of particular tension between the parties and between the branches of government. "It's hard to know what kind of Democratic nominee can get a majority (or sixty votes) in a chamber controlled by Republicans," he writes, "and thus we may be looking at a more unorthodox selection the next time around. (Someone older who won't be on the bench for long? Someone with a more bipartisan profile?)"
How likely is it that this would arise between January 2015 and January 20, 2017? 538's Nate Silver figures that Senate control is a toss-up. If it flips, a member of the Supreme Court would need to retire. So the odds are below 50 percent. But that probably won't reassure too many Democrats.
This article is from the archive of our partner The Wire.