SCOTUS Grand Strategy

I see that John has beat me to this story, but here’s my two cents on it as well:

The news wires today are buzzing with the trial balloon of Nevada’s moderate Republican Governor Brian Sandoval as a possible Obama nominee to the Supreme Court.

I believe it is a head fake, but it is worth starting out at face value. On the surface, the idea is plausible. You would think that appointing a moderate Republican will put the GOP in the awkward spot, turning down one of their own. But I think it becomes easy for the Senate GOP to say, thanks, but we’ll wait and let the next president decide.

But what was already high risk (what if Hillary or Bernie wins?) becomes even riskier: Obama would be offering a “moderate” when it is possible that if the Dems keep the White House they get to appoint a full-leftist. And with the likely retirement of Notorious RBG (Ruth Bader Ginsberg), why not take a moderate now in hopes of getting a near-solid five vote majority back next year, and without all the fuss of being called “obstructionist” while you’re trying to keep tough Senate seats like Illinois and Pennsylvania?

The brilliance of this is that there’s no such thing as Republican “moderate” justices. If you don’t appoint someone hardcore like Scalia, Thomas, or Alito, you can rely on them going bad at about a 90 percent rate. They always do: Brennan, Souter, Stevens, Blackmun, etc. (Kennedy and O’Connor still had some good moments—remember that Kennedy wrote the excellent majority opinion in Citizens United—but too often disappointed), but the odds aren’t great for Sandoval being an upside surprise for us. Obama wins either way here.

The trouble for Obama is that the left might revolt against this pick, even though Sandoval is pro-choice on abortion. I think Paul’s theory laid out here last week is correct: I’ll bet Schumer, Durbin, and the other fire eaters among the Democrats prefer a purebred leftist nominee they can make into a martyr of Republican obstructionism to whip up voters—especially among younger voters who aren’t excited about Hillary.

But who wants to be a sacrificial lamb for a political agenda? Even leftist lawyers and judges have some dignity, and won’t want to put themselves up for the FBI background checks and everything else for what is a doomed nomination. And if Obama names a crazy-lefty, the issue will backfire on the Democrats if the GOP has any minimal competence.


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