WASHINGTON — In what’s already a contentious Supreme Court confirmation battle, it looks like President Barack Obama is considering — or at least trying to make it appear he is considering — going the bipartisan route: As The Washington Post’s Mike DeBonis and Juliet Eilperin report Wednesday, the president has started the vetting process to seriously consider Nevada Gov. Brian Sandoval, R, as a replacement for the late Antonin Scalia.
This doesn’t mean Sandoval is a sure choice or even a finalist; the term-limited popular Republican governor is probably among several nominee picks Obama is considering. And some in Nevada are skeptical Obama is even seriously considering Sandoval.
But purely from a political perspective, Sandoval could be a strong pick for two big reasons:
1. Of the names that have been floated so far, he is one of the most difficult for Republicans to shut down. Turning aside a moderate Republican governor could make life difficult for vulnerable Senate Republicans defending seats in blue states.
2. Sandoval’s resume is the stuff of Republican recruiting dreams. He was the first statewide Hispanic to win office in Nevada. He’s served as Nevada’s governor since 2011. He favors the death penalty, school choice vouchers and gun rights. Before he was governor, he served as a federal district judge in Nevada from 2005 to 2009, a spot he surprised many by leaving to run for governor. Today, his resume make him an automatic short-lister for just about any national position, from Supreme Court to cabinet to vice president. (The one big hitch: Sandoval favors abortion rights, making it tough for him to make a national GOP ticket.)
If Obama is truly looking to go the consensus route, Sandoval is an almost unparalleled option. He has proven time and again he can draw up a bipartisan coalition of supporters. Senate Minority Leader Harry Reid, D-Nev., actually recommended to President Bush the then-attorney general for an open spot on U.S. District Court. (In Nevada political circles, it’s common knowledge Reid was deftly maneuvering to get one of his most formidable potential opponents out of Nevada. Sandoval left the bench to run for governor in 2010 and defeated Reid’s son, Rory Reid.)
In Sandoval’s 2005 Senate confirmation hearing for the bench, senators from both sides praised him. “There has been a lot of squabbling in recent years here with judges,” Reid said at the time. “Brian Sandoval will cause no squabbles. Everyone will vote for him. He is a class act.” “[He is] somebody we both agree is an outstanding choice for the bench,” said then-Sen. John Ensign, R-Nev. “He is going to make a great judge, no question,” said Sen. Orrin Hatch, R-Utah, a top Republican on the Senate panel in charge of considering all judicial nominations.
The Senate confirmed his appointment unanimously.
In picking Sandoval, Obama could also make the case he’s not selling out the Democratic Party’s core principles entirely. The governor’s record on abortion, expanding Medicaid, same-sex marriage and even Syrian/Iraqi refugees could be made palatable for Democrats.
As with every decision, of course, there are potential downsides.
For one, Sandoval would be skipping several levels of courts to get to the nation’s highest. “I’m sure there would be questions on his full legal credentials,” University of Nevada-Reno Professor Eric Herzik said, adding he thinks Sandoval’s actual nomination is a long shot.
Sandoval and Obama might argue that he has both legal experience and real-world political experience. “As a former federal judge, I am cognizant of the legal issues,” Sandoval told the Los Angeles Times in 2014. “As governor, I am forced to deal with their ramifications.”
And then there’s the very important matter of abortion. Sandoval is a Republican and is conservative on many issues, but the Supreme Court is the court that decides the future of abortion restrictions. Putting a pro-abortion-rights justice on the court will quite simply be a very hard sell with many of the most animated sections of the GOP base. These voters might be just fine with Sandoval being a Cabinet secretary or even president; the Supreme Court is another matter.
Beyond that, it’s a virtual certainty conservatives would balk at a GOP governor who has been “soft” on Obamacare and same-sex marriage. Given Sandoval would be replacing a very conservative, originalist justice in Antonin Scalia, he would certainly represent a move to the left on many issues that are of the utmost importance to the activists. Sandoval may be fiscally conservative, but that doesn’t really matter on the court. Social issues and policy do.
Sandoval looks like a consensus pick that could — but probably wouldn’t — break what is shaping up to be a Republican blockade of Obama’s nominee. Senate Majority Leader Mitch McConnell, R-Ky., said Tuesday he wouldn’t even personally meet Obama’s nominee, and all 11 members of the Senate panel that would review Obama’s nominee agreed not to hold hearings until a new president is inaugurated.
There’s a saying in Washington: When no one’s happy, that’s when you’ve found compromise. And if anyone could get the Senate to compromise, it might be Sandoval. On the other hand, if no one’s totally happy, the default will probably just be to wait for the next president.