The court has often operated with fewer than nine members many times in our history and, more than a few times, presidents and the Congress have jockeyed, struggled, and contested over vacancies and confirmations. It is understandable that many regret the politicization of the court's membership but it is also understandable, given the role that the court now plays in our democracy, that many people care, a lot, about the court. There can be little doubt that, if the president were a Republican and the Senate were controlled by Democrats, things would proceed similarly to the way they are now.
Turning to Judge Garland in particular, several points are noteworthy. First, there is the fact that, at 63, he is the oldest nominee to the court in 45 years. In recent decades, especially since the controversial treatment of one of President Reagan's nominees, Robert Bork, presidents of both parties have sought to increase the impact of their Supreme Court picks by nominating relatively young jurists. A judge who joins the court at, say, age 50 (as Justice Elena Kagan did) has the potential to shape the court's work for many years. By nominating Judge Garland instead of, for example, Judge Sri Srinivasan or Judge Ketanji Brown Jackson, the president appears to be taking a different path. It could be, in fact, that the president expects the Senate to stand by its resolution not to confirm Justice Scalia's replacement before the election, and so he has decided to, in effect, save some of the younger candidates on his short list for the possibility of a Hillary Clinton presidency and then let her make the nomination.