In the L.A. Times, Erwin Chemerinsky says that Ruth Bader Ginsburg should retire soon so she can be assured of a like-minded successor:
... only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.Yes, but there's going to be another filibuster if President Obama has to fill another vacancy. Why wouldn't there be?
... There likely will be many calls, publicly and privately, for Justice Ginsburg to resign before President Obama leaves the White House to prevent the risk of a Republican being able to appoint her successor. But simply leaving before the next election isn't enough. If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court....
Moreover, there is a distinct possibility that Democrats will not keep the Senate in the November 2014 elections....
So long as the Democrats control the Senate, President Obama can have virtually anyone he wants confirmed for the Supreme Court. There has been only one filibuster against a Supreme Court nominee, and that was to block Justice Abe Fortas' elevation to chief justice, not to block his initial appointment....
Just to be clear -- Senate Democrats did eliminate the filibuster for lower court nominees and other appointees last November, but not for Supreme Court nominees. So a filibuster can still happen -- and it will.
The Republican Party is in a state of total war with the president. What's more, the Republican Party knows its nihilism carries limited electoral risk -- polls have made clear that voter anger at last fall's government shutdown lasted no more than a couple of weeks. And while certain things -- another shutdown closer to the election, perhaps, or a Republican's insensitive remarks about rape -- might nationalize this year's midterms in the Democrats' favor, there's absolutely no reason to believe that on-the-fence Democratic and swing voters would be motivated by a confirmation fight involving a Supreme Court appointee most of those voters will have never heard of until his or her nomination. (Republicans have the ability to make an instant folk hero/martyr out of someone like Clarence Thomas or even Samuel Alito. Democrats don't.)
So of course Republicans will filibuster Obama's next High Court appointment -- whoever it is.
But what will they be objecting to? Oh, they'll find something. In Obama's first term, a somewhat less rabid GOP chose not to filibuster his previous picks, but the current, more radicalized GOP could easily have declared either of them beyond the pale, with Fox and talk radio as an amen chorus. Elena Kagan was denounced as "anti-Second Amendment" by the likes of RedState and (writing for Fox News) John Lott ("A Vote for Kagan Is a Vote to Take Away Your Guns"). Sonia Sotomayor was criticized for not accepting white firefighters' claims of reverse discrimination in Ricci v. DeStefano, as well as for saying in a speech, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Kagan and Sotomayor had spent their careers largely avoiding the sorts of controversies that could block their ascent, yet even they had one or two questionable items in their histories. What future appointee wouldn't? The difference is that now the GOP is out for blood.
I suspect the GOP will take the Senate in 2014 and hold it for a while. I also suspect that Hillary Clinton will win the presidency in 2016. Therefore, I think a series of Supreme Court nominees may be blocked -- and what will follow after that is the GOP and the right-wing noise machine blaming the Democratic presidents for this state of affairs. The only way out will be for Obama and/or Clinton to nominate overtly right-wing justices. Otherwise, the impasse will be long-term.