First, and most important, the Senate is unlikely to approve of any nominee the president sends. In fact, Senate Majority Leader Mitch McConnell (R-KY) already said in a statement, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Several Republican presidential candidates, which also include sitting senators that will have a direct say in the matter, have echoed McConnell’s statement and pledged to block any nominee the president submits.
Second, if the president wants to get someone through miraculously, he’ll have to nominate someone palatable to both parties – someone more moderate or even more conservative leaning that at least 14 Republican senators can get behind – along with all 46 Democratic members – to break the 60 vote filibuster threshold.
Judicial appointments are one of the most important ways for presidents to instill a lasting legacy as judicial appointees serve for life. For presidents, the goal is to nominate someone that aligns with their general political views to carry on their view points long after they leave they White House. It is for this reason that many have said in recent history Republicans have not had great luck with Supreme Court nominations since justices such as Anthony Kennedy, David Souter, and John Roberts (though this is a fallacy given that he votes with the conservative block over 90 percent of the time) have often times sided with liberals on influential cases.
For Obama to get a nominee through, he will have to compromise and pick someone that might not serve his exact political views or leanings. Tom Goldstein, co-founder of SCOTUSBlog, articulates the challenge well. “A Democratic president would replace a leading conservative vote on a closely divided court. The Republican Senate will not permit such a consequential nomination — which would radically shift the balance of ideological power on the court — to go forward,” he wrote.
One of the names floated for a potential Obama nominee is D.C. Circuit Judge Merrick Garland, who was also on Obama’s short-list the last time he had a chance to appoint a judge (he nominated Elena Kagan). Many have said that Garland is well liked among members of both parties and could be a moderate choice.
“Judge Garland's record demonstrates that he is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements,” Goldstein wrote in 2010 speculating about who Obama would nominate. “The point is not that Judge Garland is conservative. None of the candidates under serious consideration is…On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position. There are, however, some potential counter-examples involving the First Amendment and environmental law.”
If Obama is so lucky to get a nominee through the Senate, his pick will have to be someone that appeals to both sides of the political aisle – and likely someone more appealing to Republicans to assuage them. The pending political fight for the president is certainly a lose-lose in terms of carrying on a more liberal legacy, vis-à-vis Justice Sonia Sotomayor and to a lesser extent, Kagan.