With the Republicans taking control of the Senate, one thing that is certain is that if a Supreme Court justice were to retire in the next two years, voluntarily or involuntarily, President Obama’s short list to replace them will be considerably different than it would be if the Democrats had retained control. Noah Feldman identifies some possible candidates:
That means Obama would have been in a much stronger position to nominate a liberal if he had a Democratic Senate than he would be facing down Republicans.
All this means that a Democratic nominee for the Supreme Court in the next two years would probably need to have a strikingly different ideological profile than any of the last four nominees. 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, a former federal prosecutor, worked for the Department of Justice during Bill Clinton’s administration — but in the criminal division and then as principal associate deputy attorney general (yes, that’s a real title) where he supervised big ticket criminal investigations such as the Unabomber search…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. He never held a political appointment until 2011, when he became principal deputy solicitor general. Before that he had been a lawyer in private practice and a well-respected assistant in the solicitor general’s office during the George W. Bush years. The Senate confirmed him for the D.C. Circuit by a vote of 97-0 — something very close to a certificate of confirmability.
But if it is Justice Ginsburg that retires, the president would be under some pressure to nominate a woman to replace her. He’s already appointed two women to the court, which might give him some wiggle room there politically, but Feldman doesn’t mention any female judges who might be viewed as moderate and therefore confirmable.