That would work. And we have the happy choice of either "nuking" the Rats', or letting them go into yet another mid-term election as obstructionists. Think about. Even if we don't nuke, it won't bother conservatives a bit if the SCOTUS is semi-paralyzed for a session with 4-4 non-decisions, but the swing-voters are apt to consider it a crisis (brought about by Dem obstructionism) and so are the Dems (either demoralizing their base, or driving it to demand further damaging and ineffective extremist posturing from Rats in congress).
Contrary to some pubbies, I think Frist has handled this just fine, and we got 'em right where we want 'em. Granted the Rats will do damage, but they'll do that anyway. The key is make the cost as high as possible.
It won't be 4/4, however, because O'Connor won't leave until a replacement. Still....hardly a problem.
The time is now to use the nuke. This is the big one, the balance changer. Sandy is going to stay until someone is confirmed -- there won't be any 4-4 decisions. We've GOT to break up this court before they have us all in irons. We have to make this court turn 5-4 the other way.
Will the imbecile Pelosi still breathlessly announce "it's almost like the word of God?" I bet she doesn't, but don't forget she said that.