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Brian Sandoval says "thanks but no thanks" to Supreme Court appointment

Brian Sandoval with Elon Musk.
Brian Sandoval with Elon Musk.

Brian Sandoval, Nevada's moderate Republican governor who conveniently also happens to be a former federal judge, is not going to be Barack Obama's choice for the Supreme Court vacancy after all.

His exit from consideration was all but inevitable in light of the political dynamics prevailing in the current political climate. But leaking the news that he was under consideration only to have Senate Republican leaders stand by the proposition that no Obama nominee is acceptable has already accomplished everything the White House could hope to in terms of demonstrating the Republicans' hostility to compromise.

But just because the Sandoval trial balloon collapsed within 24 hours of launch doesn't mean it won't happen. Today's politics won't last forever, and there is certainly a scenario in which one can imagine the confirmation of Justice Sandoval after the presidential election.

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 George W. 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, Reid eliminated him as a potential 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 sort of made 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 Obama can get a nominee confirmed comes down to whether 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 Antonin 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 was doomed

It's the politics, stupid. The United States is in the middle of a presidential election campaign in which no candidate is going to want to come out in favor of a Supreme Court compromise that would inevitably anger both parties' bases. Hillary Clinton preemptively denounced the idea, saying, "I know the governor has done some good things, but I sure hope the president chooses a true progressive."

Bernie Sanders, obviously, was not going to get to Clinton's right, and nobody in the GOP field is going to advocate for the confirmation of a pro-choice justice.

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 in the context of a big national presidential campaign, any coalition would swiftly collapse.

Why the Sandoval option might make a comeback

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 dealmaking looks like a pretty reasonable compromise choice.

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