High stakes for the Supreme Court in November

Supreme Court Justice Antonin Scalia’s seat has sat vacant since his death in February. Two of the remaining justices are over 80 years old—Ruth Bader Ginsburg and Anthony Kennedy. And Stephen Breyer is 78. Simple math means there’s a good chance at least one more justice could pass away or retire during the next president’s tenure. Worst-case scenario: Whoever wins the election in November could replace up to four Supreme Court justices.

“I see this as a make-or-break moment,” Hillary Clinton said earlier this year. “If you care about the fairness of elections, the future of unions, racial disparities in universities, the rights of women, or the future of our planet, you should care about who wins the presidency and appoints the next Supreme Court justices.”

President Barack Obama nominated federal judge Merrick Garland to fill Scalia’s seat, but the Republicans who control the Senate are waiting until after the election to confirm or reject the appointment.

Oliver Roeder with the political analysis site FiveThirtyEight predicted if Clinton wins the election, the court will become “the most liberal it’s been in the last 80 years.” The swing vote would shift from Anthony Kennedy to Stephen Breyer, who is a reliable liberal voice.

In May, Donald Trump announced a list of 11 people he would consider for Supreme Court nominations. They are young, for judges, ranging in age from 41 to 58. Three are women. All of them are white.

About half are state judges, as opposed to federal judges, the more common route to the high court. State judges often are elected to their posts; federal judges are appointed. Many see that shift as positive because state judges are perhaps more aware of the balance of power between the states and the federal government.

Clinton has not given a list of potential nominees, but those close to her have made some educated guesses. One possibility is Judge Sri Srinivasan from the D.C. Circuit Court of Appeals. He’s of the Hindu faith and worked for the Bush administration. He supported Obama’s Clean Power Plan, but also defended corporations like Exxon Mobil. Srinivasan clerked for former Justice Sandra Day O’Connor and was deputy solicitor general under Donald Verrilli.

Another possible Clinton nominee is Judge Paul Watford from the 9th U.S. Circuit Court of Appeals, the most overturned circuit in the nation. Watford is African-American. He clerked for Ruth Bader Ginsburg and wrote three opinions that were upheld by the Supreme Court. One struck down as unconstitutional a search and seizure ordinance to force hotels to give guest records to police without a warrant.

If the GOP holds on to the Senate and Clinton gets the White House, she’ll have more incentive to re-nominate Garland for the same reason Obama nominated him: he’s qualified and ideologically liberal, but not as liberal as some other options.

Listen to “Legal Docket” on the Aug. 29, 2016, episode of The World and Everything in It.