The fight to fill Antonin Scalia’s seat on the U.S. Supreme Court

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In 2005, a brash young freshman senator from Chicago armed with a law degree from Harvard tried to derail Senate confirmation of Justice Samuel Alito – President George W. Bush's pick to replace Sandra Day O'Connor, who had retired from the nation's Supreme Court.

The senator savaged Justice Alito, not for his impeccable academic credentials nor his career as prosecutor and assistant solicitor-general. Rather, he accused the nominee of being un-American. "In fact, Judge Alito is somebody who is contrary to core American values, not just liberal values," he said.

Senator Barack Obama was the nakedly partisan attacker, even though he wasn't even on the Senate judiciary committee, and Justice Alito, an admittedly conservative jurist, was being nominated by a Republican president to replace another conservative justice appointed by another Republican president.

Fast-forward to last week and Mr. Obama vaguely and indirectly, through his spokesman, conceded some regret but offered no apology. "Some Democrats engaged in a process of throwing sand in the gears of the confirmation process," Josh Earnest said of that 2005 effort to block Justice Alito's nomination. "And that's an approach that the President regrets."

What goes around comes around.

What President Obama now seeks is to replace Antonin Scalia, a conservative – arguably the most conservative judge on a finely balanced court – with a nominee expected to join the liberal wing and, therefore, help safeguard the President's legacy on issues ranging from Obamacare to executive action allowing millions of unlawfully resident aliens to remain in the United States.

Everyone agrees, at least, that the next Supreme Court appointee may cast votes for decades that could shape U.S. society on bitterly divisive issues.

"I understand the stakes," Mr. Obama said. No president has appointed three justices to the Supreme Court in a quarter of a century and Mr. Obama's third, if confirmed by the Senate, would replace Justice Scalia, who died earlier this month. "I understand the pressure that Republican senators are undoubtedly under. This would be a deciding vote" on the court, Mr. Obama admitted.

Still, the President and other Democrats will press not just for the nominee to be confirmed but to seek political advantage by painting Republicans as the partisan obstructionists deserving of punishment by voters in November if they refuse confirmation.

"I expect them to hold hearings. I expect them to hold a vote," Mr. Obama said.

Republicans have made crystal clear that they aren't about to do either.

"Presidents have a right to nominate, just as the Senate has its constitutional right to provide or withhold consent," Senate Majority Leader Mitch McConnell said. "In this case, the Senate will withhold it."

All 11 Republicans on the 20-member judiciary committee signed a letter pledging no hearings until the next president is inaugurated.

And the Republicans found support for their position from none other than Vice-President Joe Biden.

In 1992, Mr. Biden, then the chairman of the judiciary committee in a Senate where Democrats held the majority, warned then-president George H.W. Bush not to bother with any Supreme Court nominations in his lame-duck months.

"Once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over," Mr. Biden said, admitting: "Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it."

Which is exactly what happened, because Bill Clinton beat Mr. Bush in the 1992 election and then appointed two Supreme Court justices during his first term.

Both partisanship and accusations of hypocrisy have long been part of the furious debates that swirl around the U.S. Supreme Court.

Although some pundits pine for imagined halcyon days when nominees were measured only by judicial fitness, presidents have long been irked by what they regard as obstructionist justices. President Franklin D. Roosevelt even contemplated packing the nine-member bench with three additional appointees after the Court ruled that some of his New Deal was unconstitutional.

Many Democrats still regard the Supreme Court decision on the bitterly contentious outcome of the 2000 election – in which the validity of a few thousand ballots in Florida and the legality of further recounts determined the outcome of the vote – as a blatant example of the court ruling on partisan lines for partisan reasons.

So the stakes – and difficulties – in terms of selecting a justice whose opinions, decades from now, can be anticipated with partisan reliability are high.

Republicans, perhaps more than Democrats, are especially irked by what they regard as ideological drift by several justices picked by Republican presidents.

Anthony Kennedy, who, like Justice Scalia, was named by Ronald Reagan, sometimes joins the four "liberal" justices on the court to provide a majority on cases – such as same-sex marriage – that incense many Republicans.

Even worse, some Republicans fume, was that Chief Justice John Roberts, named by George W. Bush, saved Obamacare in a landmark ruling.

The cases that cleave the court attract by far the most attention and usually reflect deep divides in American society. But they also obscure the reality that more than two-thirds of cases are decided unanimously. In 2014, only 10 split decisions out of 72 cases were along the 5-4 partisan divide. But they included key cases such as Obamacare, public prayer in town-hall meetings and campaign finance.

The judges

Sonia Sotomayor, 61

• Nominated by Barack Obama in 2009
• Yale, Catholic
• Replaced David Souter (George H.W. Bush nominee)

Stephen Breyer, 77

• Nominated by Bill Clinton in 1994
• Harvard, Jewish

Clarence Thomas, 67

• Nominated by George H.W. Bush in 1991
• Yale, Catholic

Antonin Scalia, deceased

• Nominated by Ronald Reagan in 1986
• Harvard, Catholic

John Roberts, 61

• Chief Justice
• Nominated by George W. Bush in 2005
• Harvard, Catholic
• Replaced William Rehnquist (Ronald Reagan nominee)

Anthony Kennedy, 79

• Nominated by Ronald Reagan in 1988
• Harvard, Catholic

Ruth Bader Ginsburg, 82

• Nominated by Bill Clinton in 1993
• Harvard and Columbia, Jewish

Samuel Alito, 65

• Nominated by George W. Bush in 2006
• Yale, Catholic
• Replaced Sandra Day O’Connor (Ronald Reagan nominee)

Elena Kagan, 55

• Nominated by Barack Obama in 2010
• Harvard, Jewish
• Replaced John Paul Stevens (Gerald Ford nominee)