In a vindication of Republican Senate Leader Mitch McConnell's decision, with little precedent in US history, to take no action on Obama's nominee to replace Scalia, appeals court Judge Merrick Garland, Trump is now poised to nominate a new justice as soon as he takes office. The court split 4-4 on the issue in March, just after Scalia's death, in a loss for conservative groups challenging the practice. "Justices are justices for life, and this could be a conservative court for decades to come".
As for Obama, the outgoing President will have to decide whether to remain loyal to his Court pick and press for a lame-duck confirmation or to abandon him, perhaps in consultation with Clinton, and allow her to choose a younger and more liberal Justice. While justices often set their resignations so their successors can be named by a president of the same party, the timing of their departures is not always in their own control.
In 1954, for example, a unanimous decision in Brown v. Board of Education declared the unconstitutionality of racially segregated public schools, which were once commonplace throughout the American south. The list also is notable for its omission of some pre-eminent Republican judges and lawyers, including Judge Brett Kavanaugh of the federal appeals court in Washington, D.C., and Paul Clement, who served as George W. Bush's top Supreme Court lawyer. Democrats are unlikely to forget the GOP's historic stonewalling of the Garland nomination for what would be almost 300 days - and are equally unlikely to help confirm a nominee they fear could undo court rulings on key issues such as abortion rights.
The Democrats changed the filibuster rule under Harry Reid's leadership in 2013, eliminating its use for all lower court judges but stopping short of the Supreme Court.
If Garland is not confirmed, his nomination will expire when President Obama's term does. Moreover, as he wrote on Monday in an USA Today op-ed, "I will restore the constitutional rule of law and nominate Supreme Court justices who will do the same". Ginsburg is 83, Kennedy is 80 and Breyer is 78. "This could be a typhoon for the Supreme Court". David Perdue of Georgia says it would be a "dereliction of duty" for the Senate to fail to act on Hillary Clinton's Supreme Court nominees if she becomes president.
Isakson said he believes Garland would be a better alternative than potential Clinton nominees. Leaving a seat on the court vacant undermines its role as arbiter by preventing it from making consequential, final interpretations of the law.
Breyer, a Supreme Court justice appointed by President Bill Clinton, told MSNBC in October, "The court, when it began at the time of the Constitution's writing, had six members".
Kansans for Justice was the main group leading opposition to the retention of the court.
"There would be a lot more willingness to accept government support of religion in that far right court", he said.
None of the sitting justices have suggested they would retire, but if they do, or if they were to die while on the bench, the court could see a shift. That protects them from the criticism that they approved a nominee who will at least sometimes cast liberal votes. "Don't want to sound ghoulish, but pretty unlikely [Justice Ruth Bader] Ginsburg will be able to stay long with her age  and health", Rivkin said.
That leaves Kennedy, the longest-serving justice on the court and the only one dating back to the Reagan administration.