by Michael Dorf
Last week, news surfaced that Nevada Republican Governor Brian Sandoval was one of the candidates the Obama administration was vetting for a possible SCOTUS nomination. Sandoval, who served for about four years as a federal district judge (having been appointed by President George W. Bush) was seen by some as a cagey choice for Obama: Rejecting or refusing to consider a moderate member of their own party would make Republican Senators look especially intransigent. At the same time, however, liberals longing for a chance to transform the Court were understandably worried that by naming a moderate with unknown and potentially quite conservative views on a range of issues, President Obama would be squandering a once-in-a-generation chance to shift the direction of the Court decisively. The conversation on Sandoval then ended fairly abruptly when Sandoval took himself out of the running.
Who's next? I don't have a crystal ball or inside information, so what follows is simply speculation, but it reaches a conclusion that has been largely overlooked thus far (or at least one that I haven't seen anywhere): A purely political choice by Obama could end up tying the hands of a President Hillary Clinton or (as looks increasingly unlikely) Bernie Sanders.
It might be thought that the stakes in the current nomination are entirely political. Because Senate Republicans are committed to not confirming or even holding hearings on any Obama nominee, the point of nominating anyone, the thinking goes, is simply to give a political weapon to Democrats--Clinton or Sanders in the presidential election and Democrats running for contested Senate seats in purple states. Maximum pressure gets applied, in this approach, by Obama nominating a moderate, because opposing such a moderate can be used most effectively in November by the Democratic presidential nominee and Democratic Senate candidates running against Republican Senators Portman (OH), Toomey (PA), Ayotte (NH), and Johnson (WI).
Yet it is not clear that President Obama can readily find a "moderate" with whom to bludgeon the Republicans. Sandoval's example is instructive. Let's assume that Sandoval would trade his governorship for a lifetime appointment to the Supreme Court. He nonetheless appeared to make the reasonable calculation that accepting an Obama nomination and becoming the Democrats' poster child for Republican Senatorial intransigence would severely damage his future as a Republican official--and for nothing, given that he wouldn't be confirmed anyway.
I'll challenge the reasonableness of this calculation below, but for now, I think it safe to assume that Sandoval's logic will be widely shared. If so, it will be nearly impossible to find a Republican public officeholder to accept an Obama nomination to the Supreme Court. Maybe there's a relatively young moderate-to-liberal Republican appointee currently serving on a lower federal court who would be willing to serve as the Obama SCOTUS nominee, but if so, I can't think of who it is.
That leaves Obama to fall back on a moderate Democrat, but given the American people's general ignorance about judicial matters, it would be very easy for Republicans to portray ANY Democrat as inherently liberal. Republican presidential candidates talk about Chief Justice John Roberts as though he were the second coming of William Brennan, after all, so you can imagine their reaction to any Democrat. As Tom Goldstein pointed out on SCOTUSblog, if Republicans were actually to give individual consideration to any Obama nominee, they could certainly come up with some substantive pretext for rejecting that nominee, but so long as Obama nominates a Democrat, they don't even need a pretext. In our era of polarization, a Democrat can be demagogued as a "liberal judicial activist" simply in virtue of being a Democrat.
Goldstein makes another point that has become pretty much conventional wisdom since Republicans coalesced around the idea that they will not hold hearings: Any nomination is simply about the 2016 electoral politics. Goldstein allows that a sufficiently compelling nominee could lead enough Republicans to change their minds about holding hearings but that, even if so, the Senate won't confirm anyone. Thus, he and everyone else conclude, Obama should nominate someone who puts maximum pressure on Republicans so that Democratic candidates can exploit the political advantage. Assuming that someone who plays to the right demographics and reads to the general public (but not the Republican base) as moderate could be found, Obama should nominate that someone.
I think the conventional wisdom is wrong. Even granting the assumption that someone who could be successfully portrayed politically as a moderate exists, this strategy could boomerang, because a President Clinton or Sanders would come under enormous political pressure to re-nominate Obama's nominee if--as seems likely--the Republicans hold no hearings.
Here the game theory gets a bit complicated because Obama, Clinton, and Sanders might well have different ideal Justices. But let's make a somewhat simplifying assumption that any of them would, if they could wave a magic wand, put X on the Court, where X is a youngish, liberal lawyer-judge who would be expected to be confirmed by a just-barely Democratic Senate in early 2017, perhaps after abolition of the filibuster for Supreme Court confirmations or perhaps even if not, during the new president's "honeymoon" period. However, because X would not be perceived as a moderate, Obama following a just-politics strategy doesn't nominate X now. Instead, he nominates Y, who is widely perceived to be to the right of X, and whose views on a lot of issues are unknown. When the Senate carries through on its promise to hold no hearings on Y, Democratic presidential and Senate candidates will use that refusal as political fodder, repeatedly pointing to Y's credentials, appealing life story, and moderation as proof that the Republicans are obstructionist extremists.
Now fast-forward to January 2017 after an assumed successful November for the Democrats. Having won the presidency and a Senate majority by beating the drum for Y as the best thing that could happen to the Supreme Court since John Marshall, it would be very difficult for President Clinton or Sanders then to nominate anyone other than Y, even though the new president and most Democrats would much prefer X, and in a world in which Y hadn't been previously in play, X could be confirmed. Indeed, one could well see the Democratic candidate promising to renominate Y as part of the general election campaign.
My conclusion, therefore, is that President Obama does not have a politics-only freebie here. Whomever he nominates could well end up actually being re-nominated and confirmed by his successor. So he ought to look for someone who helps in the general election AND would be broadly welcomed by Democrats after the election. Meanwhile, perhaps Governor Sandoval was wrong to turn down the possibility of a Supreme Court nomination after all. Or maybe he's just hoping to get named to the Court by President Trump.