administration it took three nominees to fill the seat that ultimately went to harry blackman. ronald reagan had to nominate three people before anthony kennedy was confirmed. what's unprecedented if it happens is simply not voting. that has never been done as a mode of obstruction. you can vote down nominees. that's been done many times. i think that would be politically difficult, simply not to vote on any of hillary clinton's nominees, but voting no is certainly an appropriate function of what senators can do. >> david, can we say it, eight justices? >> we can't because you have got tied. >> well, you can. that's the ted cruz argument. i heard jeffrey toobin, who as we both know is a supreme court scholar, screaming in disgust when ted cruz made that statement. functionally, he jumped on one of the justices saying things