Will Obama Push a Politician for the Supreme Court?
The Roberts Court is the first without a single justice who was ever elected to any office. Brian Sandoval could change that.
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.”
“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.”
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