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Why Obama is vetting Nevada's Republican governor for the Supreme Court

Photo by Win McNamee/Getty Images

Brian Sandoval, the moderate Republican governor of Nevada who also happens to have been a federal judge before becoming governor, has been floated by both of his home state's senators as a possible compromise Supreme Court appointment. The White House is apparently taking the idea seriously enough to have commenced some formal vetting to see if there's some big reason other than the obvious partisan politics angles not to do this.

But then there are the obvious partisan political angles. If literally everything about American politics in 2016 were different, filling a vacancy on the Supreme Court caused by the death of an iconic conservative justice with a moderate Republican could be a sensible compromise between a Democratic White House and a Republican Senate. But in the actual politics of 2016 it seems so obviously doomed as to be hardly worth trying — though floating Sandoval's name in the press as a way to bait Republicans into batting it down could be a savvy strategy for Democrats to underscore exactly how rigid the GOP is being about the confirmation battle.

More importantly, while Sandoval does not seem like the right person for the current situation, the situation will almost certainly change and Democrats on Capitol Hill, though well-aware that the base doesn't like the idea, tell me it's a possibility that should be taken seriously. If, for example, Hillary Clinton wins in November but Republicans maintain control of the Senate the Sandoval Option could start to look like a timely solution.

Who is Brian Sandoval?

The Nevada governor is a Republican and, as such, a generally reliable conservative on a range of issues. But as the governor of a politically moderate state that had a Democratic controlled legislature for parts of his tenure, he has taken a number of noteworthy moderate positions:

Sandoval also has an interesting long-term relationship with frenemy Harry Reid, the Democrats' leader in the Senate. Way back in 2004 when Sandoval was attorney general, Reid recommended him to the Bush administration as a Republican he would gladly back for a seat on the federal judiciary. Sandoval got the nod from Bush for a seat on a federal district court, and the affair was generally interpreted in the press as an example of Reid's political savvy — by putting the young, popular Sandoval on the federal bench he eliminated him as a potential Reid opponent in his 2004 reelection battle.

But then in 2009, Sandoval resigned his seat on the bench to run for statewide office. Not against Reid (who ended up narrowly defeating weak opponent Sharron Angle) but against Reid's son, Rory, chair of Clark County's county commission.

Notwithstanding the family drama, Reid and Sandoval have often been allies on Nevada-specific issues, fighting against nuclear waste storage at Yucca Mountain and for the construction of Tesla's Gigafactory battery manufacturing facilities.

Why Sandoval for SCOTUS might make sense

As a politician who is also a former federal judge, Sandoval is more qualified for a Supreme Court seat than the typical elected official who gets floated. And as a moderate Republican, he is ideologically positioned between Barack Obama and the GOP Senate leadership, which seems like the kind of thing you would want from a compromise candidate.

What's more, in a practical sense whether or not Obama can get a nominee confirmed comes down to whether or not he can get moderate Republicans to back his choice. A moderate Republican might fit the bill.

The basic calculus leading to a compromise would be risk aversion. Sandoval is considerably more conservative than most Democrats, but distinctly to the left of Justice Scalia. Seating him on the bench would increase the number of cases that liberals win. In particular, it would hedge against the risk that a Republican wins in 2016 and manages to replace both Scalia and Ginsburg with conservative jurists — essentially eliminating the "swing vote" status of Justice Anthony Kennedy.

Conversely, for Republicans, putting Sandoval on the bench would foreclose the possibility that Democrats take the White House and the Senate in November, fill the seat with a liberal, and launch the first progressive majority on the Supreme Court in two generations.

Why Sandoval makes no sense

Just imagine Obama announced tomorrow that he was nominating a pro-choice Republican to fill Scalia's seat. Ted Cruz would denounce it, of course, and so would Donald Trump. Marco Rubio would follow suit, as would the House Freedom Caucus. Bernie Sanders would denounce it too, and so would Hillary Clinton and Elizabeth Warren.

A handful of cross-pressured senators like Mark Kirk (R-IL) and Joe Manchin (D-WV) would likely praise the gesture as bipartisanship, but they'd be a distinct minority and any hope for a deal would swiftly collapse. There's much more to the Supreme Court than abortion, but the anti-abortion movement is the emotional core of conservative activism on judicial issues.

On the Democratic side of the aisle, filling the seat with a moderate Republican might actually be worse from the standpoint of labor unions who are currently looking forward to a tie on the Friedrichs case. What's more, the idea of Obama being forced to name a Republican touches the emotional core of the Democratic base — the idea that Republican obstructionism is an effort to delegitimize Obama and his presidency.

Sandoval could just be a fake-out

Political leaks are almost never genuine leaks. Usually when something like this gets in the press it's because the key decision-makers want it to get in the press. Floating a Sandoval trial balloon in order to induce Republicans to freak out preemptively is a nice way of demonstrating to America's political journalists that Senate Republicans are not currently interested in compromise.

That would be a good way to lay the groundwork for the nomination of a solid progressive. Republicans will, obviously, block a solidly progressive nominee which will lead to some criticism of Obama for not making a more conciliatory choice. The Sandoval leak helps establish that conciliation might not work.

How Sandoval could end up on the Supreme Court after all

Imagine the Supreme Court vacancy lingers through the November election, and when all the votes are counted Hillary Clinton is president-elect but Republicans still hold a majority of Senate seats.

Now everyone's hopes and dreams will have been frustrated and there will still be a need to do something about that Supreme Court vacancy. Suddenly a pro-choice Republican governor with a fairly conservative record but also a history of compromise and deal-making looks like a pretty reasonable compromise choice.

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