U.S. Supreme Court

If Ginsburg retires, will Obama have to choose an older nominee?

If Justice Ruth Bader Ginsburg retires to allow President Obama to appoint her successor, the nominee will likely run into resistance from most Republicans.

The Washington Post’s Post Partisan column considers the likely scenarios. A filibuster “is pretty much certain” and 60 votes will be needed for confirmation. Would Obama be able to get the needed votes?

Justice Sonia Sotomayor was confirmed 68 to 31. Of the nine Republicans who supported her, six are now gone. Justice Elena Kagan was confirmed 63 to five, with one Democrat voting against her. Of the five Republicans who supported her, three are now gone.

“So what does all of this tell us?” the column asks. “It may be possible for President Obama to get a mainstream Democratic choice confirmed … but not by very much. It’s hard to find more than five Republicans who might be willing to vote to confirm; I think it’s almost impossible to imagine a nominee similar to Kagan and Sotomayor getting more than, say, 62 votes for cloture. And if Republicans even pick up as few as two seats in 2014, then confirmation under current Senate rules and practices would be extremely unlikely.”

Post Partisan sees the possibility of a compromise, however. “If Obama sent up a 70-year-old instead of someone in her 50s, then Republicans might be willing to confirm,” the column says. “Other than that, however, it’s difficult to imagine anything other than Senate reform that would budge a committed group of 41 or more Republicans.”

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