So Obama is vetting Republican governor Brian Sandoval as a replacement for the recently deceased Antonin Scalia. Republicans have already announced they will not consider any nomination because it is an election year. And they are following the Democratic tradition as embodied in the Thurman Rule, the speech by then Senator Joe Biden in 1992, the speech by Senator Charles “Chuck” Schumer in 2007, statements by then Senators Barrack Obama and Hillary Clinton.
Cue Admiral Ackbar:
The question is why would Obama nominate a Republican? Democrats see this as a “trap”, i.e. nominate a moderate/centrist and embarrass the Republicans for not voting for the inoffensive candidate and portraying the GOP as obstructionists. It makes sense on a certain level. But is it? Dig down a little and there is a flaw.
[A stipulation: We will define centrist as an Anthony Kennedy justice, a quasi-libertarian who tends to side with the progressive side on expanding rights to different groups and sides with conservatives on other matters. The centrist wouldn’t be in the mold of Scalia, but he wouldn’t be a Ginsburg either.]
Let’s game this out: Obama nominates Sandoval, a white male Republican Governor. Because of this, the Republicans eventually buckle and vote him in. Now what? Sandoval is 52 years old. So, you’re looking at someone who could be on the bench for 30 years (Scalia was 79 when he died). Unless Clarence Thomas leaves the bench soon, the Supreme Court will continue to be seen as “conservative” for the foreseeable future. All thanks to Barrack Obama.
[Yeah, that seems plausible. But let’s just pretend shall we.]
Such a nomination would depress the base and hurt the party. Clinton is trying to make the SCOTUS nominee a campaign point. Nominating Sandoval removes that issue. Not only that, it would set a precedent should Clinton win in November. The Republicans would be able to argue that the ideological balance had to be maintained and if one of the conservative justices steps down, a conservative Justice would have to be nominated to replace him.
If Obama actually nominates Sandoval, he’s essentially telling the Democratic Party’s base the Republicans are going to win in November. After all, why would he nominate a centrist if he thought Clinton will win the 2016 election? A Hillary victory gives her the mandate to nominate a more liberal justice to replace Scalia, someone like Ginsburg. Picking a centrist now is tells the base, “A Republican is going to win in November and if we don’t put this guy on the bench now, the new President’s picks is going to much worse for us.” How’s that for a battle cry to encourage people to come out and vote?
That’s why all of these news leaks claiming Sandoval is being vetted are just attempts by the White House to troll the Republicans. Aside from the fact that Obama would never make a pragmatic decision when it comes to dealing with the GOP, it would be seen as a capitulation by the Sanders/Warren wing of the party and it would cause a revolt. You could even see Democrats trying to filibuster the nominee. Imagine Chuck Schumer, who has spent the last two weeks telling people to ignore what he said in 2007 doing a complete 180 and saying no, listen to what I said back then.
Right now, the smart thing for the Republicans to do is nothing. Now if Sandoval is in fact formally nominated, maybe the party will have to reconsider (especially if it looks like Trump will be the nominee) whether they should hold hearings and vote. But until then as the old saying goes, “Be cool, fool.”