[T]he most intriguing potential fight will come if either Justice Ruth Bader Ginsburg (age 81) or Justice Stephen Breyer (76) decide that they don’t want to risk Democrats giving up the White House in 2016. It is precisely here that the logic of our timid democratic politics suddenly reverses. When major policy authority is given up by Congress or the president and is de facto thrown to the court, judicial nominations become almost as grave for the future of the nation as palace intrigue once was to the royal houses of Europe. While few expect Obama and the Democrats to fight for someone as progressive as Ginsburg, it would be seen as a total legacy-damaging failure in the party if Obama settled for a swing-voting moderate.
Chait also keeps focused on the judiciary:
Obama can fill the judiciary and staff his administration because he has a majority of votes in the Senate. But if Republicans win the Senate, then they can block his appointments. Sahil Kapur has one of the few detailed reports I’ve seen explaining the Republican strategy to leverage their majority. The parties have no incentive to cooperate on judicial nominations — Republicans would be better off leaving a seat empty than allowing it to be filled with an even moderately liberal judge. They say they want to force Obama to appoint “more acceptable” judges — “Obama would have to present nominees that are much much more acceptable to Republicans, or they won’t even schedule hearings,” explains Randy Barnett, a powerful Republican legal strategist — but the only kind of judge they have any reason to accept is one likely to side with conservatives more often than liberals. And Obama has no incentive to appoint a judge like that.
The difference between 50 Democratic senators (plus a tie-breaking vote by Joe Biden) and 49 Democratic Senators is the difference between two full years of filling the judiciary and two years of likely gridlock. What’s more, if a Supreme Court justice becomes incapacitated or dies, the judicial gridlock could become a Constitutional struggle — a possibility I explored last spring, but which has gathered little attention. News reports have wildly overstated the legislative importance of Republican Senate control. At the same time, they have understated its importance to the judiciary.