Obama could appoint a Supreme Court justice even if a Republican wins the 2016 election

Obama can appoint new justice even if GOP wins election.

(Image credit: Alex Wong/Getty Images)

The outcome of the up-for-grabs Supreme Court seat could come down to a 17-day window next January, NBC News reports. While Republicans have already vowed to block anyone President Obama nominates, if Democrats were to win back the Senate and lose the White House next November they would hold control of both branches of the government for two weeks before Obama officially leaves the Oval Office on January 20.

"If a Democratic Senate comes in on January 3, President Obama could send in his Supreme Court nomination. Then Democrats could apply the 'nuclear option' to Supreme Court nominations, and vote in Obama's nominee by a simple majority," a former Obama administration lawyer told NBC. What's more, Democrats only need four seats to make a majority; Republicans are defending many more seats with 24 of the 34 up for this election.

"The possibility shows Republicans could overplay their hand," said the former Obama official, who requested anonymity to discuss a strategy which assumes Obama's nominee won't be confirmed this year."If Republicans act in a way that jeopardizes Senate seats," the official argued, "then it doesn't matter who wins the presidential election."In fact, if Republicans completely block a "consensus" Obama nominee all year and then lose the Senate, Obama might be tempted to appoint an even more liberal replacement for Scalia in January. [NBC News]

Of course, it is not the Obama administration's preferred tactic; the president has already called for a "timely" vote on his nominee. No president has pushed a high-profile nominee through during his last 17 days in office.

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Jeva Lange was the executive editor at TheWeek.com. She formerly served as The Week's deputy editor and culture critic. She is also a contributor to Screen Slate, and her writing has appeared in The New York Daily News, The Awl, Vice, and Gothamist, among other publications. Jeva lives in New York City. Follow her on Twitter.