First, we are sadly unlikely to ever again see New York accents so dominate the nation’s highest court.
Second, I have no idea what impact the vacancy will have on the 2016 general election or on the various Senate races. But I do think that it will help Hillary Clinton in the Democratic primary. As my friend Doug Hoff said, “I can see Obama playing this one well to HRC’s benefit — anything that takes attention away from Sanders’ pet issues probably helps out Clinton.” Add his point to the fact that a SCOTUS vacancy will raise the salience of concerns about electability and I think this puts some serious weight on the scales for Secretary Clinton over Senator Sanders.
Third, the Clean Power Plan just got a lot more likely to survive! An affirmative action case from which Kagan is recused also just got a little more likely to see a liberal decision. But only a little. And the odds that Deferred Action to Parents of Americans will be stopped did not change: if SCOTUS deadlocks 4-4, then the lower court decisions stand and it goes down.
Fourth, it seems to me that the Republicans have little reason to confirm anyone under any Democratic president. 4-4 beats 5-4. Plus, there is always the chance that Justice Ginsberg might pass away, in which case the conservatives would have a 4-3 majority.
Sure, refusing to nominate anyone would be unprecedented. But a lot of unprecedented political things have been happening lately. Why would the inauguration of a new Democratic president in 2017 change the calculus? Is there a reason for the Republicans to confirm any Democratic nominee to replace Scalia?
Finally, if President Obama really wants to troll the Republicans, then he should nominate Richard Posner to the high court. Oh, the Senate will never confirm him. But it would be fun!