With a Republican Senate likely to give Obama problems in the realm of judicial appointments, Jonathan Ladd bets Justices Ginsburg and Breyer are having second thoughts about holding off on retirement:
[T]o find a situation as favorable for replacing Breyer and Ginsburg with liberals as 2013-14 was, we have to wait for the next time Democrats control both the Presidency and the Senate. Because presidential elections are so influenced by short term economic swings, the results in 2016 (and all future elections) are very uncertain. And with the Republicans’ new 54 seat Senate majority, party control of the Senate after 2016 is up for grabs as well. Considered together, the joint probability of Democrats controlling both the Senate and the Presidency after 2016 is only modest. The likelihood of a big fight over a Supreme Court nominee in the next decade between a president and Senate of different parties, resulting in one or more nominees being rejected and possibly a seat being vacant for an extended period of time, is reasonably high and just got higher.
Noah Feldman considers who Obama might nominate if a seat on the court opens up in the next two years:
To be confirmed by a Republican Senate, the nominee would have to be at least a credible centrist — more in the model of Sandra Day O’Connor or Kennedy then Ginsburg or Breyer.
What potential candidates fit that description? The big midterm election winners in the pool of potential justices are people like Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia circuit, or Sri Srinivasan, a relatively recent appointment to the D.C. Circuit. … Garland is known as a moderate, and he could plausibly replace any of the three old white men should one of them have to step down. As a judge he has managed not to incur the wrath of conservatives, and he is probably confirmable. Srinivasan has much less experience, having been appointed to the federal bench in 2013. But Srinivasan has even less partisan baggage than Garland.
Jonathan Bernstein offers a solution that he thinks would avoid a chaotic confirmation process:
Barack Obama could select an old nominee, who might be confirmed. In the event of a vacancy, a normal replacement could easily serve for decades. On the other hand, a nominee at age 75 or so would lower the stakes considerably, to the point at which obstruction would be less of a partisan imperative, even if the nominee was broadly within the liberal judicial tradition. Obama is entitled to nominate anyone he chooses. And Republicans are entitled to oppose someone they think would be terrible for the nation (and terrible for groups in their party coalition). But both sides have an obligation to find and accept reasonable compromises. If a senior appointment is the only way out, it’s hard for either side to oppose it.
The Dish 