The infosphere is alive with the sound of breaking news: Obama is visibly, actively considering Nevada Governor Brian Sandoval, a Republican, for the Supreme Court vacancy left by the passing this month of Justice Antonin Scalia.
Harry Reid told CNN today that he would support Sandoval (which I know will weigh with LU Nation, although on which side of the decision scale is another question).
I have nothing in particular against Sandoval, although as a “centrist” he has his political problems for me. He is very popular in Nevada, in large part because of his pro-Second Amendment position on gun rights. That would weigh in his favor.
Other things don’t, however. Politico just happened to have a big article on him on Tuesday – go figure – and had this to say about Sandoval’s political record:
Sandoval’s problems aren’t exactly unique: John Kasich, a friend of the governor’s, likes to tout his centrist agenda in Ohio. But even compared to Kasich, Sandoval’s record wouldn’t be easy to embrace if you’re running for president. The tax increases Sandoval signed have since funded a landmark overhaul in public education—likely to become his signature achievement and a bold gamble meant to turn around what is frequently ranked the worst state education system in the country. Yet education is simply the most recent of a long list of Sandoval’s conservative heresies: The abortion rights governor has embraced Obamacare; lauded immigration reform and DREAMers; fiercely championed renewable energy; and taken lesser known actions on police body cameras, driver’s licenses for undocumented aliens and multiple moves to squelch Republican-led tort reform.
So right away it seems we can identify him as one of those Republicans. Politico describes him being “seen as an ideological apostate,” but is careful to add that he “simultaneously boasts approval ratings in the high-to-mid 60s.”
To put this in perspective, keep in mind that a big plurality of GOP voters in Nevada went for Trump yesterday. These aren’t constitutionalist conservatives we’re talking about. Add them to Nevada’s Democrats, and you can certainly get a popular “centrist” Republican governor out of it. What you won’t necessarily get is popularity for a constitutionalist jurist of Scalia’s stripe.
The hype and calculation of politics will overtake thoughtful judgment in the next few days, as pundits bat around the possibility of a Sandoval nomination. Some observers will see it as a brilliant gotcha move by Obama. Others will see it as a political win for Republicans, and advise Mitch McConnell to treat it as one, and run with it.
But that’s shortsighted and foolish. Sandoval is 52; he could sit on the Supreme Court for 30 years or more. What would we actually be getting with Sandoval, in terms of jurisprudence? Politics and gubernatorial management are not a good guide to answering that question.
One thing I strongly suspect about Sandoval is that he does not have views on constitutional jurisprudence that would withstand heavy pressure from emotion and politics.
His political record on the issues is somewhat incoherent, a philosophical hazard of centrism.
His record on the bench is a brief one: four years as a federal district court judge (from 2005 to 2009). And he chose – very unusually – to resign his judicial seat and reenter electoral politics, which is interesting in itself. It doesn’t sound like his heart lies in jurisprudence to begin with.
We don’t need another “smooth move” SCOTUS nomination that turns out to keep biting the Constitution in the butt for decades, like John Roberts or Anthony Kennedy.
So I urge you to look beyond the political hype about this, and consider the wisdom of the Republican senators who’ve already said a Sandoval nomination won’t change their minds about when to take up a Supreme Court decision. Washington Post quotes them here:
But at least three key Republican senators — all on the Judiciary Committee that is charged with considering a Supreme Court nominee — said that a Sandoval nomination wouldn’t change their decision not to consider Obama’s nominee.
“This is not about the personality,” Cornyn said on Wednesday afternoon.
“I don’t think so,” Hatch said when asked if a Sandoval nomination would alter his thinking, adding he thought “very highly” of the GOP governor. Asked if Sandoval was qualified to serve on the court, Hatch said, “I wouldn’t make that judgment now.”
“The short answer is no, it doesn’t change anything,” said Sen. Mike Lee (R-Utah).
Joe Biden was probably right about this in 1992. Filling a Supreme Court seat shouldn’t be a political football in a presidential election year. There might be times when this pill is as bitter for Republicans to swallow as it is for Democrats. There might be times to go against it, in fact; but it’s still good advice.
Any old weathervane justice is not what we need on the Court. We need a committed jurist with a strong, coherent philosophy of protecting the Constitution. Whatever his suitability for other roles in politics, there is absolutely nothing to indicate that Brian Sandoval would be such a jurist. That’s what we pay the Senate to look at. The Senate is not supposed to always be moved, like the House, by the politics of the moment. If the Senate Republicans decline to be gotten round by the nomination of a “popular” Republican, they’ll just be doing their jobs.