By Tom Cushing
Sandoval for Supreme?Uploaded: Feb 24, 2016
Fascinating news out of the capitol, one day after the GOP-led Judiciary Committee and full Senate gleefully and expectedly renounced any intention to fulfill their Constitutional mandate. They will shun anyone that the President, following HIS Constitutional duty, nominates to the vacant seat on the Supreme Court. If nominated they will not consider the jurist; if that individual even so much as stops by for a chat, they will be out-of-town.
Now, both sides in this sludge-fest have trotted-out videos of the other side either seeking or blocking other nominations: so it’s death-match politics-as-usual, ho-hum. The questions of whether that’s good governance, or good for the public interest, or even the subtler possible distinction between a straight legislative vote and “advice and consent” have been ground by the combatants into the dust.
Enter Brian Sandoval.
He is the popular, termed-out Republican governor of Nevada, and a former state Attorney General and Federal District Court (trial) judge. Word leaked/was leaked Wednesday that he is being ‘vetted’ by the White House as a possible nominee. That could change Everything about the nomination process. Or it might just be a red herring, which is deliciously in-season this time of year.
As surmised in last week’s epistle, the GOP’s best, limited leverage in this situation would be to seek a more judicially centrist nominee for the position than the Prez might otherwise be inclined to choose. Mr. Obama may be taking the play to the Senate by choosing our neighbor to the east. Would the solons accept this gift of moderation, or continue their futile campaign to de-legitimize a re-elected President? We may get to find out.
So what do we know of Mr. Sandoval? He is of Hispanic heritage, born in northern California and raised in Reno. He got his law degree from Ohio State, for which he might be forgiven, because it’s not Ivy, nor Michigan. In his governing, he has been a gun-positive fiscal conservative, but also something of a social liberal as to issues like abortion, Obamacare and the same-sex marriage.
Of his judicial temperament and tendencies, less is known. Trial court judges deal with many issues in guiding their proceedings, often distinct from those argued on appeal. They are also tighter-bound by precedent than their appellate counterparts. As a former AG, we might predict that he’d be tough on crime, but it’s more likely true that his ongoing familiarity with those issues has led him to private conclusions that he can’t really use in that prosecutorial role.
Let’s not forget another former prosecutor, and Governor, who was appointed to the Supreme Court by Mr. Eisenhower: California’s own Earl Warren. The President thought he was getting a centrist, and wound-up with a quite liberal jurist who provoked all those ancient road signs calling for his removal, sponsored by the John Birch Society (and underwritten by the current Koch brothers’ daddy). Many of the issues on which he led landmark majorities expanded rights of criminal defendants.
Other judges have also surprised observers by straying from the anticipated path. I’m not certain this is always true, but several relatively recent appointees have “migrated,” usually trending more liberal than was thought likely (Cf. Justices Stevens, Souter and Kennedy on some social issues). Ike later called Warren’s appointment “the biggest dam’ fool mistake of his Administration,” so it’s always a bit of a crapshoot.
There are other, more reliably liberal judges who might be considered (several of them recently confirmed for the ‘Triple A’ federal circuit courts of appeals – a few unanimously, despite their lefty philosophical leanings). Their nomination would put the GOP senators in the awkward position of having to explain why their reputations had deteriorated so badly in such a short time. But, as should be evident by now, the Senate has a high tolerance for – a near immunity to -- that kind of embarrassment.
So, why gamble on the relatively unknown, wild-card Governor Sandoval? Let’s assume he’s confirmed. The Prez and his Party get to make the Senators look silly for their premature repudiation of ANYone Mr. Obama might propose, and for their fleeting insistence that the Next administration make the appointment. He also gets a youngish (52), reasonably likely ally – certainly much more liberal-minded than his predecessor, Mr. Scalia. AND, by appointing the Court’s first Hispanic of Mexican ancestry, he solidifies that voting bloc for the Dems in the fall elections. Not a bad triple play.
It’s also, of course, how the system is supposed to work from a governance standpoint – the Senate majority being contra to the Exec, a middle-ground choice really ought to ensue. But who’s keeping THAT score?
And what happens if Governor Sandoval is nominated and the GOPers stand firm against Any consideration of his appointment? The Latino bloc (considered ‘crucial’ by the GOP in its 2013 post-mortem on the last Presidential election) is possibly driven even further into the Dem column as a result of this, most recent GOP affront, as are good-government moderates. The issue remains alive and furiously animates higher November turnout – perhaps by partisans of Both sides, but Republicans vote anyway, and Dems are more numerous. Meanwhile, the Court trundles along in deadlock on many important cases – but here the crucial difference is that “not to decide is to decide” – the Appeals Court rulings then stand. And those Appeals Courts are now populated with Obama appointees.
It’s hard to see how the President loses, either way.
I’m guessing that Mr. Obama is enjoying these waning months of his administration, and being handed this opportunity by The Fates must be delicious. The Sandoval possibility may become a full course on the menu, or just a tantalizing appetizer. Either way, can Mr. Obama really be faulted for savoring the moment – or even playing just a bit with his food?