The Supreme Court Is At the Tipping Point: Should A Democratic Senate Prevent Bush From Creating A Solidly Conservative Court?

Great article by John Dean:

Advise The President that No Conservative Will Be Approved. Should a vacancy occur more than, say, ten months away from the election, then Senate leaders should simply inform the President that they will not let him lock in a solid conservative majority on the Court. Many convincing explanations can be given for the Senate's taking this stance: For example, public opinion is not ready to remove the separation of church and state, nor to return prayer or teaching creationism to public schools. Moreover, polls show quite clearly that the majority of American do not want Roe v. Wade overturned. And these are just a few of the actions that would be undertaken by a Scalia-led Court that would not command public agreement or assent.

Clearly, with the Democrats in control of the Senate (albeit, depending on the recovery of Democratic Senator Tim Johnson of South Dakota), they can reject any nominee they wish. According to the Congressional Reference Service, from 1789 to 2004, the Senate rejected some twenty-two percent of all presidential nominees to the High Court.
Often, the Senate has rejected nominees for purely political reasons. For example, I watched the Senate both destroy a good judge and fine man, Clement F. Haynsworth Jr., who was nominated by President Nixon in 1969, and reject a not so fine fellow, G. Harrold Carswell, who was nominated by President Nixon in 1970. (The FBI never did a proper background check on Carswell, for had they done so, Nixon surely would never have nominated him). No nominee was more qualified than Robert H. Bork, who was nominated by President Reagan in 1987, but rejected by the Senate because he was too conservative.
Senate Democrats likely would be joined by several of the moderate Senate Republicans in their efforts to block the filling of any vacancy until after the 2008 election. Thus, so long as the Democrats have control, Bush is not going to be able to permanently tilt this court.
Still, things could get thrilling if a seat were to open this year and Bush were to find a stealth candidate whose politics were claimed to be moderate, and whose true views remained somewhat mysterious. By comparison, Justice David Souter, largely a cipher when nominated, turned out to be quite liberal - but what if he had been the conservative Papa Bush thought he had nominated?

http://writ.news.findlaw.com/dean/20070223.html