Will Obama Push a Politician for the Supreme Court?

Nevada Gov. Bri­an San­dov­al might be the only real con­tender to bring polit­ic­al ex­per­i­ence back to the Su­preme Court.

The White House is vet­ting San­dov­al, the mod­er­ate Re­pub­lic­an gov­ernor of Nevada, as a po­ten­tial nom­in­ee to re­place the late Justice Ant­on­in Scalia, The Wash­ing­ton Post first re­por­ted Wed­nes­day. He’s an at­tract­ive can­did­ate in many ways. Nom­in­at­ing a Re­pub­lic­an would put the Sen­ate GOP in a bind, yet San­dov­al is lib­er­al enough on key so­cial is­sues that he might be ac­cept­able to Demo­crats. He’s His­pan­ic and a former judge who ap­par­ently wants to re­turn to the bench.

If the choice of San­dov­al can prompt Sen­ate Re­pub­lic­ans to re­verse course—they’ve vowed not even to hold hear­ings on Pres­id­ent Obama’s pick— then he might also fill an­oth­er gap on the high court: the dec­ade-long drought in justices who have held an elec­ted of­fice.

There’s some in­tu­it­ive ap­peal to a Su­preme Court justice with polit­ic­al ex­per­i­ence: They used to be far more com­mon, and two of the Court’s most pop­u­lar former mem­bers—Justice Sandra Day O’Con­nor and Chief Justice Earl War­ren—served in elec­ted of­fices be­fore they were nom­in­ated to the high court. Their polit­ic­al ex­per­i­ence has been cred­ited for their abil­ity to build con­sensus on the Court.

But the num­ber of justices with elect­ive ex­per­i­ence has been de­clin­ing stead­ily since the 1950s; in­creas­ingly, the path to the Su­preme Court runs through the fed­er­al ap­peals courts, the Justice De­part­ment, and cor­por­ate law. The Roberts Court is the first without a single justice who was ever elec­ted to any of­fice, and many leg­al schol­ars—in­clud­ing Scalia—have be­moaned the lack of more di­verse back­grounds.

If Obama wants to change that—and he signaled on Wed­nes­day that he might, writ­ing in a SCOTUS­b­log post that he’s look­ing for a nom­in­ee with “the kind of life ex­per­i­ence earned out­side the classroom and the courtroom”—then San­dov­al is likely his best bet.

Aside from San­dov­al, the oth­er politi­cians who have been men­tioned as pos­sible Obama nom­in­ees are all sen­at­ors. It’s a large, ideo­lo­gic­ally scat­ter­shot group: Vari­ous lists of po­ten­tial nom­in­ees have in­cluded Sens. Cory Book­er, Amy Klobuchar, Chris­toph­er Coons, Shel­don White­house, Eliza­beth War­ren, and Or­rin Hatch.

But it’s been 67 years since a pres­id­ent nom­in­ated a sen­at­or to the high court, and Obama is highly un­likely to break that streak. Nom­in­at­ing a sit­ting sen­at­or for Scalia’s seat could carry par­tic­u­lar risks for Obama. The White House has re­peatedly em­phas­ized how ser­i­ously Obama is tak­ing this pro­cess, hop­ing to claim an apolit­ic­al mor­al high ground over Re­pub­lic­ans’ re­flex­ive op­pos­i­tion to any nom­in­ee.

“If you take some­body who’s been a par­tis­an politi­cian all their lives and throw them in­to the Court, I think you risk a per­cep­tion that, yeah, there really are Re­pub­lic­an and Demo­crat­ic justices—and I think the justices them­selves would not like that par­tic­u­larly,” said Brandon Den­ning, a law pro­fess­or at Sam­ford Uni­versity.

Nom­in­at­ing a Re­pub­lic­an gov­ernor could ap­pear even more apolit­ic­al than nom­in­at­ing a judge, but any nom­in­ee with elec­ted ex­per­i­ence—in­clud­ing San­dov­al—would face some of the same chal­lenges.

There are few­er and few­er politi­cians on the Su­preme Court, in part, be­cause mod­ern pres­id­ents of­ten prefer nom­in­ees who haven’t taken pub­lic po­s­i­tions on many of the con­ten­tious is­sues the Court is likely to face—which means judges who haven’t ruled on those is­sues, or law­yers who can say they have only ever ar­gued their cli­ents’ po­s­i­tions, not their own.

Politi­cians, though, are ag­gress­ively on the re­cord about most of the con­ten­tious so­cial is­sues the high court con­siders, in­clud­ing and es­pe­cially abor­tion and same-sex mar­riage. San­dov­al has sided with Demo­crats on both, and also im­ple­men­ted key pro­vi­sions of Obama­care after say­ing he be­lieved oth­er key pro­vi­sions were un­con­sti­tu­tion­al—all of which provide grist for the Ju­di­ciary Com­mit­tee.

Still, he would be a sig­ni­fic­antly stronger, and more plaus­ible, nom­in­ee than any of the sen­at­ors men­tioned along­side him. (Come on, Obama’s not go­ing to nom­in­ate Or­rin Hatch—not as a grand bi­par­tis­an olive branch, and not as a polit­ic­al ploy to ex­pose Re­pub­lic­ans’ in­transigence. Whatever oth­er cri­ter­ia Obama con­siders, staunch op­pos­i­tion to ba­sic­ally the en­tire Demo­crat­ic agenda is surely a deal-break­er.)

A sit­ting gov­ernor—par­tic­u­larly a pop­u­lar gov­ernor in a swing state—can make a much more per­suas­ive claim as a con­sensus-build­er than any­one mired in Con­gress’s dys­func­tion, and that ap­peal to bi­par­tis­an prag­mat­ism could help San­dov­al de­flect some of the spe­cif­ic ques­tions about his re­cord.

His ex­per­i­ence as a fed­er­al judge also sets him apart from oth­er polit­ic­al nom­in­ees, who might not be as well suited as to the day-in, day-out work of be­ing a judge, even at the highest levels.

Al­though the Court de­cides some of the most con­sequen­tial is­sues in polit­ic­al life, it spends far more time mired in com­plex de­bates that mat­ter only to law­yers.

One of the last or­al ar­gu­ments in which Scalia par­ti­cip­ated, for ex­ample, was over the ques­tion of: “Wheth­er the Tenth Cir­cuit wrongly deepened a per­vas­ive cir­cuit split among the fed­er­al cir­cuits re­gard­ing wheth­er the cit­izen­ship of a trust for pur­poses of di­versity jur­is­dic­tion is based on the cit­izen­ship of the con­trolling trust­ees, the trust be­ne­fi­ciar­ies, or some com­bin­a­tion of both.”

Does that seem a great fit for Cory Book­er or Eliza­beth War­ren, or a good use of their polit­ic­al skills, or something they’d be happy do­ing for the rest of their lives?

“I just don’t think they have the train­ing for it,” Den­ning said, re­fer­ring to elec­ted of­fi­cials gen­er­ally. “You can’t just breeze in there and pick it up on the fly.”

But San­dov­al, a former dis­trict court judge, could be the ex­cep­tion.

“He is a judge at heart, a guy who likes to weigh many pieces of evid­ence be­fore mak­ing a de­cision,” vet­er­an Nevada polit­ic­al journ­al­ist Jon Ral­ston wrote in a column about San­dov­al on Wed­nes­day. “As much as he loves be­ing gov­ernor, his tem­pera­ment is more suited to a black robe.”