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This artilcle last year, discusses what might happen if congress were to be hung on nomination...
... so the analysis is very relevant to what is happening now. Note that they say that a hung court 4-4 favors liberals since so many lower courts tilt towards liberal control as noted by this map of such lower court allegiances.
https://www.washingtonpost.com/opinions/why-the-next-supreme-court-vacancy-will-favor-liberals-no-matter-who-retires/2015/12/31/12828dce-978b-11e5-8917-653b65c809eb_story.html
...
This argument rests on the unexamined assumption that “the next president will hold tremendous power over the Supreme Court’s make-up,” as Rolling Stone put it. But legal scholars have started discussing scenarios in which the next president is practically powerless when it comes to appointments. They caution that because the partisan divide is so deep, it may be impossible to get Supreme Court nominees confirmed.
“It’s very likely that that seat just stays vacant,” Ian Millhiser of the liberal Center for American Progress Action Fund told USA Today. Conservative law professors Josh Blackman and Randy Barnett have gone further, arguing in the Weekly Standard: “The inconvenience of one or more terms at the Supreme Court with fewer than nine justices — even through an intervening midterm election — pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait.”
Conservative legal scholar Michael Stokes Paulsen says the court could get along fine with eight justices. “What do you do with ties, in the meantime?” he wrote in the National Review. “Again, there’s an easy answer. The Court has a standard practice about what to do in such situations, and it is a sound one: it leaves the judgment of the lower court alone. Ties go to the winner in the ‘court below,’ but without setting a national precedent. This has happened many, many times in our nation’s history, and the republic still stands.”
Leaving a seat open indefinitely may not seem like a big deal. After all, justices recuse themselves from time to time, and the Constitution doesn’t say anything about needing nine. But partisans should take note: Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats.
...
This argument rests on the unexamined assumption that “the next president will hold tremendous power over the Supreme Court’s make-up,” as Rolling Stone put it. But legal scholars have started discussing scenarios in which the next president is practically powerless when it comes to appointments. They caution that because the partisan divide is so deep, it may be impossible to get Supreme Court nominees confirmed.
“It’s very likely that that seat just stays vacant,” Ian Millhiser of the liberal Center for American Progress Action Fund told USA Today. Conservative law professors Josh Blackman and Randy Barnett have gone further, arguing in the Weekly Standard: “The inconvenience of one or more terms at the Supreme Court with fewer than nine justices — even through an intervening midterm election — pales in comparison with the repercussions of making a bad selection. It’s worth the fight, and worth the wait.”
Conservative legal scholar Michael Stokes Paulsen says the court could get along fine with eight justices. “What do you do with ties, in the meantime?” he wrote in the National Review. “Again, there’s an easy answer. The Court has a standard practice about what to do in such situations, and it is a sound one: it leaves the judgment of the lower court alone. Ties go to the winner in the ‘court below,’ but without setting a national precedent. This has happened many, many times in our nation’s history, and the republic still stands.”
Leaving a seat open indefinitely may not seem like a big deal. After all, justices recuse themselves from time to time, and the Constitution doesn’t say anything about needing nine. But partisans should take note: Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats.
...
If we are talking about recess appointments, Obama should try to take advantage of recess to appoint any outstanding lower court appointments ASAP now especially in the 7th and 8th courts where perhaps a single justice change on those courts could make a difference, to ensure that those unresolved SCOTUS decisions go down to lower courts deciding in favor of progressives. Note that the Florida court would side with liberals this time around!
