JEFFREY TOOBIN: What’s in many respects more interesting about what McCain said, was “we will oppose any nominee that Hillary Clinton puts forward.” Think about that. That's never happened in American history, that every member of one party has voted against a president's nominee to the Supreme Court, and that really raises the possibility that if the Republicans control the Senate, we are at eight justices for the foreseeable future.

BROOKE BALDWIN (HOST): Which is why these downballot races -- I know we're all hung up on the top of the ticket, that's why all of it is so key this election season.

TOOBIN: Absolutely. It sounds like inside baseball, but who controls the United States Senate, 50 -- the difference between 49 and 51 votes is enormous, because if the Democrats control the chairman of the Judiciary Committee, they will get a hearing on Merrick Garland, or whoever -- if she doesn't -- if Hillary Clinton doesn't renominate him, whoever her appointee is. If it's Chuck Grassley, if he wins and the Republicans take control, they can not hold hearings just like they've not held hearings on Merrick Garland, and there will be eight justices for the foreseeable future.