President Obama reported consideration of Nevada Gov. Brian Sandoval, a Republican, as a possible Supreme Court nominee has come to an end: Sandoval doesn’t want the job. But, even after it's been popped, the Sandoval trial balloon merits an autopsy: It was a horrible idea and should not be repeated in any form.
(Some analysts saw this as a never-in-reality-serious proposal that was simply intended to troll Republicans. Obama's track record of self-sabotaging "compromise" makes me doubt that.)
First, politically, it would have been a big but predictable mistake: Obama summarily capitulating by opening negotiations with a proposal that, under saner conditions, Republicans would have made on their own. Such a nomination would definitively prove that liberal establishment centrism, celebrated for its pragmatism, qualifies more as pathology than strategy.
Year after year, Obama has proposed half measures only to be summarily obstructed by Republicans. In doing so, he not only allows Republicans to drag the 50-yard line yet farther to the right but incapacitates progressives from actually setting goals or having dreams. Compromise is great and necessary. But the ends can’t justify the means if you aren’t clear about where ideally you want to end up. This frustration is precisely what is animating the current Democratic primary.
Sandoval, of course, would have likely been much better on many issues than Scalia, and, if I had to live under one Republican governor, it would probably be him. Critically, he supports abortion rights. But, while important, that shouldn’t be enough. The Supreme Court can and should do a lot more than narrowly ruling to keep the government from micromanaging women’s uteruses.
I’ve yet to see an even cursory review of Sandoval’s track record as a district judge and, now that he’s out of the running, none are probably forthcoming. But here are some areas where, given his history as governor, Sandoval might have fallen short:
- As governor, Sandoval signed a notably expansive school voucher law that would use taxpayer dollars to fund private schools—including religious ones. The law has been held up by challenges filed in state court, including one by the ACLU of Nevada, contending that it violates the state constitution’s ban on using public school funds to benefit sectarian or secular organizations. If Sandoval thinks that the government can fund sectarian institutions, that’s a reading of the Establishment Clause significantly at odds with those who believe in the separation of church and state.
- Sandoval has a mixed record on organized labor, scaling back prevailing wage protections for construction workers but also, according University of Nevada, Las Vegas Law Professor Ruben J. Garcia, fending off right-wing proposals to gut public employee collective bargaining. Before Scalia died, the Supreme Court was poised to issue a historic ruling that would have incapacitated public sector unions by depriving them of mandatory membership dues. This is an issue where progressives do not want business to have a possible fifth vote.
- Obama was apparently thinking about nominating someone to the Supreme Court who called Obamacare—his signature domestic policy initiative, itself modeled on Republican proposals, which barely and only partially survived judicial review—unconstitutional. Yes, Sandoval backed Medicaid expansion. But as Ian Millhiser points out at ThinkProgress, “If Sandoval’s position had prevailed in the Supreme Court, Obamacare would have completely ceased to exist.”
- Sandoval’s past statement in support for a voter ID law makes me doubtful that he would have been a reliable vote on civil rights, along with Fourteenth Amendment and Fourth Amendment issues more generally. So does a conversation I had today with Nevada civil rights attorney Cal J. Potter III, who represented a man named Charles Barnard in a lawsuit accusing Las Vegas Metropolitan Police officers of brutally assaulting him in 2001. A jury ultimately found in Barnard’s favor. But first, in 2007, Judge Sandoval threw out the case, ruling that the officers were protected by the doctrine of "qualified immunity." A Ninth Circuit Court panel overruled him, however, finding that "a reasonable officer would have known it violated clearly established law to use a choke hold on a non-resisting arrestee who had surrendered, pepper-spray him, and apply such knee pressure on his neck and back that it would cause the collapse of five vertebrae in his cervical spine.” Wow.
The United States needs a justice who will not roll over in the face of police violence, who will stand up for the right to privacy as law enforcement and national security state agencies eagerly exploit novel surveillance technologies, and take a skeptical look at the death penalty and disproportionately draconian sentences in light of the Eighth Amendment’s ban on cruel and unusual punishment.
Sandoval would by no means have been the worst nominee possible. But it would have been a shocking one for a Democratic president to put forward. Obama is the president. He should propose the best possible nominee and stop negotiating with himself.
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