Obama’s Sandoval Gambit for SCOTUS Nomination (Update: Sandoval puts the kibosh on)

I bet that President Obama and Valerie Jarrett think they’re really clever and boxing in Senate Republicans by floating the story in the Washington Post that they are considering appointing Nevada’s Republican Governor Brian Sandoval to the Supreme Court. 

Too clever by half.

Update: that didn't last long. Via CNN:

Nevada Gov. Brian Sandoval on Thursday ruled himself out for a nomination to the Supreme Court, one day after news broke that President Barack Obama was considering the Republican to replace late Justice Antonin Scalia.

"Earlier today, I notified the White House that I do not wish to be considered at this time for possible nomination to the Supreme Court of the United States," Sandoval said in a statement. "I have also spoken to Senators (Harry) Reid, (Dean) Heller and (Mitch) McConnell and expressed the same desire to them. The notion of being considered for a seat on the highest court in the land is beyond humbling and I am incredibly grateful to have been mentioned."

Yes, Sandoval is a Hispanic, so the intent here is to alienate Hispanics from the Republican Party – though Democrats killed the foreseeable appointment of the first Hispanic to the Supreme Court when they filibustered Miguel Estrada’s nomination to the DC Court of Appeals, widely seen as a step toward an eventual SCOTUS nomination. But that was then, this is now, and besides Republicans can be criticized for doing things Dems get away with (for instance, declaring that no presidential election year nominations to SCOTUS should be taken up by the Senate).

But in order to spring this trap, Obama would have to actually nominate Sandoval, and the GOP would have to yield to media pressure and schedule Judiciary Committee hearings. Both are very unlikely.

If Obama actually nominated Sandoval, there would be screams of protest from the left. See, for example, Think Progress:

The fact that Obama would consider naming Sandoval is surprising, given the governor’s past statements on the Affordable Care Act. In his first State of the State Address in 2011, Sandoval said that “many aspects of the law are unconstitutional” and he pledged to “continue to fight to have them overturned.” He later personally signed briefs filed in the Supreme Court arguing against the law’s constitutionality and claiming that the Supreme Court “should hold the ACA invalid in its entirety.” (snip)

Sandoval’s record also creates a fair amount of uncertainty regarding how he would rule on several landmark issues currently before the Supreme Court, including whether to defund public sector unions, and the fate of President Obama’s plans to fight climate change and temporarily permit undocumented immigrants to remain in the country.

The governor’s record on unions is relatively moderate compared to, say, Wisconsin Gov. Scott Walker (R), but Sandoval has still clashed with organized labor. In his 2015 State of the State address, Sandoval called for “collective bargaining reform,” and state lawmakers responded with a proposal opponents labeled “union Armageddon.” The governor eventually signed more moderate legislation that the state’s largest public sector union labeled “reasonable.” Sandoval, however, also signed a law exempting schools from paying construction workers a prevailing wage, despite an ad campaign by the AFL-CIO urging him to veto the bill.

At the very least, this record is sufficiently mixed that it is unclear whether Sandoval would provide a key fifth vote to the plaintiffs in Friedrichs v. California Teachers Association an effort to cut off much of public sector unions’ funding.

On the environment, Sandoval’s record is similarly mixed. He signed a law that, according to Clean Energy Project director Jennifer Taylor, “effectively eliminat[ed] coal-fired power plants from Nevada’s energy mix.” Yet the Public Utilities Commission of Nevada, led by three Sandoval appointees, also reduced incentives for solar power use in the state, effectively raising energy bills for people who use solar power.

The Supreme Court, meanwhile, is widely expected to take up a challenge to President Obama’s Clean Power Plan — the president’s most ambitious action to fight climate change — in its next term. Sandoval’s record on coal suggests that he is unlikely to be moved by the strident rhetoric many energy companies have used in their legal briefs, but Sandoval’s vote — which is likely to be dispositive if he is confirmed to the Supreme Court — is less certain than other potential nominees.

The governor, meanwhile, may be especially likely to strike down Obama administration policies that would temporarily permit nearly 5 million undocumented immigrants to work and to continue to live in this country. Though Sandoval supported a bipartisan immigration reform bill that passed the U.S. Senate in 2013, Sandoval “said Obama overstepped his authority by going around Congress to protect up to 5 million undocumented immigrants from deportation,” according to the Las Vegas Review-Journal.

Democrats think that with Trump looking increasingly like the GOP nominee, they have a good chance of winning the White House and possibly the Senate majority, so an actual nomination of Sandoval would waste an opportunity to switch the Supreme Court to a hard left majority.

But suppose Obama does nominate Sandoval, why would the GOP reverse their reliance on the Biden Rule? There would be no benefit whatsoever to giving Sandoval hearings. That would only benefit the Democrats’ argument about insulting Hispanic voters with a rejection. By sticking to Biden’s position, they have less liability, arguing from principle, not the specifics of Sandoval himself.