Waving off Republican senators who say they won’t consider any Supreme Court nominee, President Obama is forging ahead with vetting candidates to nominate as the next justice, replacing Antonin Scalia. Some of the names widely suspected to be on the list are liberals: Judges Sri Srinivasan, Patricia Millett, and Merrick Garland of the D.C. Circuit Court, and Judge Paul Watford of the Ninth Circuit, for example. There are a few more out-of-the-box picks, too, being bandied about, from Attorney General Loretta Lynch to Senator Amy Klobuchar. And on Wednesday, The Washington Post and Wall Street Journal reported that Brian Sandoval, the moderate Republican governor of Nevada, is being vetted. Does that mean he’s in serious consideration? Of course not. But what if he is? What would a Sandoval pick look like? Matt Ford and David Graham try to talk it through the way they like best: argument.
Matt Ford: First off, as a full disclosure, I’m a Nevadan with the same alma mater as Sandoval. I admit having a fellow Nevadan on the Supreme Court would be thrilling in its own ways, but I think this would be a strong choice for other reasons. First, he puts pressure on GOP senators to actually respond to the nomination. A liberal-leaning judge from a federal appeals court is easy to dismiss; a popular Republican governor isn’t. Second, Sandoval is relatively moderate. He’s pro-choice enough that it’d be hard to see him overturn Roe v. Wade and he almost certainly wouldn’t pose a threat to Obergefell v. Hodges or other gay-rights decisions. He wouldn’t be a William Brennan or Sonia Sotomayor, of course, and many liberals wouldn’t be happy with Obama for that. But replacing Scalia with Sandoval would still move the Court significantly closer to the center.
Third, and perhaps most importantly, Sandoval would provide a much-needed boost to the Court’s diversity. Most of the focus here will be on his Hispanic heritage, of course. As a Westerner, he’s also from outside what Adam Liptak cleverly termed the “Acela Circuit” that currently dominates the Court. He’d also be the first justice who’s held elective office since Sandra Day O’Connor retired. As a result, he’d be the only justice who actually knows how campaign-finance laws work in practice. He’d also join Elena Kagan as the only justice who doesn’t come from the federal appeals courts. Sandoval’s presence would make the Court a less cloistered and monastic institution, and align it closer to Americans’ lived experiences.
David Graham: Hey, listen, Brian Sandoval seems like a prince of a guy, and I’m glad to hear he’s well-educated enough to work at The Atlantic—though the Supreme Court is a different matter, I suppose. But I think you’re getting ahead of yourself in most of this argument. I’m not qualified to judge what kind of justice Sandoval would be—I don’t know enough about him, and there have been some high-profile cases of justices acting differently on the bench than the presidents who nominated them hoped. (We can talk more about that later if you like.)
But I can easily see why many progressives might be chagrined, at best, by a Sandoval pick. I’m starting from the premise that Senate Republicans mean what they say: They really don’t intend to grant hearings to any Obama nominee for the Supreme Court. Starting there, this looks like a classic case of a phenomenon that drives liberals up a wall: Obama giving away his strongest chips before the hand has even been dealt. The 2011 debt-ceiling fight is only one prominent example. Let’s game out a Sandoval nomination. The worst-case scenario is that no matter what happens, Republicans refuse to hold hearings on the nominee, meaning Obama can only win politically by proving Republicans are obstructionists. The case for Sandoval is that by nominating a moderate Republican, he demonstrates good faith, and GOP rejection of him proves their bad faith. But who cares? What the last few years have shown is that the country is highly polarized and Obama’s overtures like this don’t sway rank-and-file Republicans to back him. By choosing Sandoval, he would pass up the chance to make a pick that would energize another group—say, African Americans or women—at the polls in November. The best-case scenario is that Republicans fold. And what then? Given the best chance to flip the court to the left in a generation, Obama will have succeeded only in putting a conservative (albeit a moderate one) there.
Ford: There’s merit to left-wing grievances against Obama’s negotiating tactics, especially on his readiness to cut social programs. But a Supreme Court nomination is an entirely different battle than the debt ceiling or the fiscal cliff. Obama has no leverage whatsoever here. None. If Obama were replacing one liberal justice with another, the calculus might be different on both sides. But movement conservatives have spent decades building a robust legal movement to reshape the federal judiciary. Replacing a staunch conservative like Scalia with someone in the mold of Sotomayor or Kagan would produce the first genuinely liberal Supreme Court in almost a half-century—a tantalizing possibility for the left, but an existential threat for the right. There’s less than zero incentive for any GOP senator to let that happen.
But let’s say summer comes and neither Cruz nor Rubio drop out of the presidential race, giving Donald Trump the plurality (perhaps even a majority) of delegates, and thus the nomination. Many Republicans fear his presence atop the presidential ticket will be toxic for GOP candidates down the ballot, which seems highly plausible. Democrats need to capture five seats to win the Senate, and a healthy number of GOP senators in purple states are facing reelection, including Mark Kirk in Illinois, Kelly Ayotte in New Hampshire, Pat Toomey in Pennsylvania, and Ron Johnson in Wisconsin. Marco Rubio’s Florida seat will also be up for grabs, and Harry Reid’s Nevada seat could stay in play for Democrats.
This scenario is how I think Obama gains the upper hand. If Obama puts forth a liberal, there’s still no incentive to buckle. But with a moderate nominee, McConnell now has a lifeline to toss vulnerable GOP incumbents. Voting to confirm Sandoval would allow senators like Kirk and Ayotte to tangibly distance themselves from Trump—a chance I’d imagine they’d leap at. McConnell gets a chance to preserve his majority in the Senate, which would still likely be tenuous in this scenario. And instead of leaving a vacancy to the whims of an American electorate that could elect Trump, Obama gets to keep Roe and Obergefell safe and dilute the Supreme Court’s conservative wing for a generation.
Graham: These are smart arguments, and they force me to rethink this a bit. I worry about premising this on how the presidential race might play—after all, it’s been surprising at every turn so far.
A lot of your argument also hinges on the Supreme Court being categorically different from anything else, which it is. But I don’t know how different, there’s not much track record, and so all there is to go on is a roughly analogous nomination—an appointment of a liberal guy to fill a Republican appointee’s seat, and one that would help flip a crucial court. Remember the massive fight over Obama’s D.C. Circuit nominees? In early 2013, Obama was trying to fill out the court for the first time in years, and Republicans were determined to stop him. The circuit is often considered the second most important in the land, and the appointments would flip the court liberal. Then-Majority Leader Harry Reid threatened to change Senate rules to prevent filibusters on Sri Srinivasan’s nomination. The threat worked, and Mitch McConnell agreed to a vote. How did that vote go? Srinivasan was confirmed 97-0! (Later, Reid did change the rules when Republicans blocked three more nominees, and in the end all three of those judges were confirmed, too. The judges they replaced weren’t exactly liberals, either: solid conservative David Sentelle; Douglas Ginsburg, who Reagan unsuccessfully nominated for the Supreme Court; and current Chief Justice John Roberts.)
The most obvious lesson from these cases is that Republicans are determined to block Obama nominees from consideration, but that if forced to consider them, they tend to treat the nominees on their merits. Srinivasan was widely respected, and he won unanimous confirmation. The next set of three judges for the D.C. Circuit, including Millett, was more ideologically liberal and controversial, and those votes were accordingly closer. Is Scalia a different situation? Of course. Could Obama get a judge like Nina Pillard or Robert Wilkins through the Senate for a Supreme Court slot to replace him? Probably not. But could he get a Sri Srinivasan through? Why not? From a liberal perspective, Obama would be giving things away by picking Sandoval. This is, as many people have pointed out, a once-in-a-generation opportunity to reshape the court. How many progressives will be satisfied to use such a chance to … just preserve Obergefell and Roe?
Besides, that all assumes we know how Sandoval would vote. His pro-choice record is one thing, but there’s a long history of Supreme Court justices doing unexpected things—from David Souter’s decisions, to Anthony Kennedy’s gay-rights rulings, to John Roberts’s vote on the Affordable Care Act. Democrats have had better luck with their nominees toeing the line, but why take a chance now?
Ford: I admit, I hadn’t really considered the D.C. Circuit clash when thinking this out. It does raise intriguing questions about GOP senators’ rigidity on judicial nominees. (McConnell’s zeal in presenting a united front this week might also be seen as a move to curb internal dissent.)
At the same time, it’s worth noting that Democrats broke that deadlock because they controlled the Senate, and therefore had mechanisms like the nuclear option to dissuade—and ultimately overcome—GOP obstruction. With the Senate in McConnell’s hands, Republicans control all the mechanisms to force a vote while Obama and the Democrats have none. This is ultimately a qualitatively different fight than for the D.C. Circuit. If the question were about a nominee’s actual merits, McConnell and Grassley wouldn’t have opted for a blockade before Obama even reached a shortlist. It’s about ideology.
But your D.C. Circuit example also helps me think about another point I’ve been wondering how to formulate. Srinivasan would make an excellent justice, no question about it. At the same time, I think a nominee like Sandoval could benefit the Court in other ways. First and foremost is the diversity of experiences and perspectives, which I mentioned earlier. But the Court’s also reached a point where its ideological divisions increasingly match those of the presidents who appoint them. With the retirements of Justices John Paul Stevens (a Gerald Ford appointee) and David Souter (a George H.W. Bush appointee) during Obama’s tenure, the Court is now divided between four Republican-appointed conservatives and four Democratic-appointed liberals. If that trend continues, a casual observer could be forgiven for wondering if major 5-4 decisions come from a super-legislature and not a court.
Do progressives want that balance tilted in their favor? Of course! And I don’t blame them for urging Obama to choose the most progressive nominee they can. But since those aspirations can’t escape the GOP majority in the Senate, they might consider other options. Scalia shows how a single justice can change the entire tenor of the Court, for better or for worse. A less ideological, more grounded justice could do the same. A nominee like Sandoval who isn’t already a federal appellate judge, who’s held elective office, who hails from beyond the Northeast, and who wouldn’t reliably vote along the ideological lines of the president who appointed them would be a boon for the Supreme Court as an institution. There’s no guarantee how any jurist will act on the Court, so it’s a risk. But I think it’s one worth taking.