Game Theory Time: SCOTUS Edition

 
1200px-Brian_Sandoval_at_Lomie_Heard_Elementary_School

Brian Sandoval, by U.S. Air Force Photo by Airman 1st Class Jason Couillard. Public Domain.

Apparently, Obama is thinking of nominating a Republican:

President Barack Obama said he won’t back down from picking a nominee, a direct challenge to top Senate Republicans who the day before said they won’t hold hearings or meet with any nominee Mr. Obama puts forward. At the same time, people familiar with the matter said the administration is vetting Brian Sandoval, the Republican governor of Nevada, as a possible candidate.

This could be bad:

Mr. Sandoval — who initially on paper would seem hard for many Republicans to refuse — is far from the nomination. But the emergence of his name as a possible contender opens a new window into the administration’s thinking. The White House has already indicated that the president intends to nominate someone who has past Republican support and lacks a significantly liberal background.

The prospect of Obama nominating another Justice Kennedy or a conservative justice raises a number of questions:

  1. Why now? Obama isn’t exactly known for upholding constitutional norms.
  2. How does he benefit? Surely the benefits of highlighting GOP “obstructionism” would be far outweighed by the costs of caving on an issue that’s very important to liberal Democrats.
  3. What are the different possible scenarios of how this could play out?

In the worst case, Obama puts forward a conservative justice who writes mostly conservative opinions, but won’t overturn past liberal precedents, thus greatly reducing the chances of American structural reform happening before we hit the economic and political crises projected to start in the 2020s.

For example, one can imagine a scenario where SCOTUS strikes down, say, the Wagner Act, and forces even a President Hillary Clinton to embrace sensible labor market reform. On the other hand, the chances of Clinton ever signing a formal repeal of the Wagner Act are pretty much zero.

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  1. Vice-Potentate Inactive
    Vice-Potentate
    @VicePotentate

    He’s going to make us cut off the left wing of the party and we’re going to have to do it.

    • #1
  2. Carol Member
    Carol
    @

    There are several benefits to the most divisive and Machiavellian president we have ever had:

    1) . It removes Brian Sandoval from the political stage- they have been trying to persuade him to run for the Senate or maybe even higher office.
    2) He is Mexican American, so Republican obstruction will get-out-the Hispanic vote for Hillary.
    3) He is a pretty liberal Republican, so he would probably move further left on the court. ( he is pro choice and pro gay marriage)
    4) It would make Republicans look even more raaaacist to obstruct such a ” moderate” from their own party.

    • #2
  3. BThompson Inactive
    BThompson
    @BThompson

    If a Republican governor would accept the nomination in defiance of his party that would show he’s not really someone we could depend on to be a  good judge anyway and so just by accepting the nomination he would prove himself unworthy of confirmation. Republicans would obviously be dodging a bullet to deny such a candidate a hearing.

    Sandoval is an abortion rights advocate and would back EPA global warming nonsense among other liberal causes. He would be worse than Kennedy, he would essentially be a reliable liberal judge who would occasional side with the originalists on matters that weren’t especially central to the left’s agenda. He is the worst disguised Trojan horse ever. Sandoval should not be confirmed if nominated and if he’s smart he won’t allow Obama to nominate him.

    • #3
  4. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    There are two lines of thinking here. One, Obama is not going to nominate anyone who isn’t going to do his bidding on the Court because so much of this year’s lineup features cases that pretty much solidify or sink Obama’s legacy. Two, this could be a trick to get Republicans to say that they would entertain such a nomination just to have someone else put up for the vacancy.

    My reading on this is that the American people have no clue what is going on with the Court. We saw last week that some 37% of Americans in a poll had no clue who Scalia was, so expecting all hell to break loose over the refusal of a nominee is probably not going to have the desired effect. For Republicans to remain strong, we have to remain strong, which means we have to call every day McConnell, Grassley, and any other Senator you might think needs to be bolstered. This is going to be a battle of wills and the less our spineless leadership hears from us, the more likely they are to cave to Obama and the media.

    • #4
  5. Israel P. Inactive
    Israel P.
    @IsraelP

    Why? Because he expects to have one or two more and the Republican Senate will be hard-pressed to stonewall after confirming Sandoval. And if he “expects,” he must have good reason.

    • #5
  6. I Walton Member
    I Walton
    @IWalton

    We’ve said we won’t hold hearings.  So don’t.  let him keep trying.  This issue won’t affect the election at all.  Praise him.  Say the next president should include him for consideration but stick to the Biden rule.  Take a stand on the Biden rule or help Trump.  Obama isn’t running.  Anyone who would vote for the corrupt felon isn’t going to be moved by a court battle.  Trump is the threat, not Obama.  Showing weakness, fear and kowtowing to bad press and White House bluster helps Trump.

    • #6
  7. katievs Inactive
    katievs
    @katievs

    Gov. Sandoval is pro-abortion, so, no originalist.

    • #7
  8. Cazzy Member
    Cazzy
    @Cazzy

    The calculus might also be that this would tip the Republicans to hold hearings, but that there would be enough combined Republican and Democratic opposition to defeat the nomination. Then, once the precedent for holding hearings has been established, he can put forth any number of preferred candidates. He wins either by getting one of his nominees through, or just by making the Republicans look like chumps.

    • #8
  9. Casey Way Inactive
    Casey Way
    @CaseyWay

    I like calling the precedent the Biden Rule, based on his floor comments in 1992. I’m not sure what is so confusing here. The conservatives says they are the party of principle whereas the Democrats do not “let a crisis” go to waste. Holding hearings or a nomination would allow the President to show the Republicans just as craven when they perceive an advantage. Praise the President for his diverse consideration of nominees and acknowledge his choice of a moderate would be appropriate and show bipartisan inclination that has been sorely lacking through most of his presidency. However, you are a party of principle and will reserve consideration til after the election. Also, by calling it the Biden rule, it makes it easy colloquial shorthand that can be used in the media and associate the VP with the practice.

    • #9
  10. BD Member
    BD
    @

    Sandoval voted for Rubio in the Nevada caucus. Hope Cruz can capitalize on that.

    • #10
  11. Larry3435 Member
    Larry3435
    @Larry3435

    The premise of the GOP refusing to consider an Obama nominee has always been that Obama would nominate another far-left, “living Constitution,” ideologue.  If the threat to block the nominee results in Obama nominating a reasonable, centrist conservative, then the GOP should confirm him.  Sandoval is far better than we would get after Hillary beats Trump in November.  He’s probably also better than we what would get if Trump beat Hillary in November (as if!).

    I know that the “base” would then call the “GOPe” a bunch of sell outs.  To which I say, [CoC] the base.  I’m sick of them declaring defeat after each time we get a victory.  Getting a moderate Republican nominee out of Obama would be a tremendous victory.  I don’t think it will happen, but if it does – pass me a party hat!

    • #11
  12. Richard Rummelhart Inactive
    Richard Rummelhart
    @RichardRummelhart

    The Republicans need to take the lead and tell the President they will confirm a nominee who will uphold the constitution.  They then need to propose some possible nominees.

    • #12
  13. Derek Simmons Member
    Derek Simmons
    @

    It’s game theory according to Chas. Shulz. Charlie Brown is Mitch; Obama is Lucy. And the game is on with Sandoval as the football. Lucy shames Charlie into one more kick at the ball and after Charlie is committed Lucy switches balls from Sandoval to the long-expected Left Wing Living-Constitutionalist we knew was waiting on the sidelines in the willing clutches of the MSM officiating.

    • #13
  14. Larry3435 Member
    Larry3435
    @Larry3435

    Derek Simmons:It’s game theory according to Chas. Shulz. Charlie Brown is Mitch; Obama is Lucy. And the game is on with Sandoval as the football. Lucy shames Charlie into one more kick at the ball and after Charlie is committed Lucy switches balls from Sandoval to the long-expected Left Wing Living-Constitutionalist we knew was waiting on the sidelines in the willing clutches of the MSM officiating.

    And then the GOP rejects that nominee, and runs on the issue of how Democrats lie and cheat.  Sounds good to me.

    • #14
  15. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    I’m guessing this guy is a non-Originalist.

    Judicial philosophy is the most important thing, very nearly the only thing.  Obama knows that, and he knows that replacing Scalia with a non-Originalist of any party is a colossal defeat for conservatism.

    • #15
  16. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    BD:Sandoval voted for Rubio in the Nevada caucus. Hope Cruz can capitalize on that.

    Four ago, he supported Rick Perry who endorsed Cruz recently, but I guess Sandoval thinks his support for “comprehensive immigration reform” is more important.

    Sandoval proudly supports allowing illegal immigrants to have driver’s licenses which also promotes voter fraud.  Illegal immigrant driver’s licenses was actually a big deal eight years ago — in the Democrat presidential primary.

    I read that he was previously against illegal immigrant driver’s licenses, but that he changed his mind.

    What happens in Vegas doesn’t always stay in Vegas.

    Interesting that Senator Reid supports him as Sandoval defeated Senator Reid’s son to become governor, but I guess they agree about many things.

    • #16
  17. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    In order to avoid the Lucy and the Football scenario, \the senate should “advise” the President that they will  submit a list of 5 or so candidates that they will consider “consenting” to, all others will be ignored.

    The list should be led by Miguel Estrada and filled out with others of similar caliber (I would also include Ted Cruz on it).

    • #17
  18. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    And beginning today, no Republican should ever discuss the Supreme Court vacancy without referring to “the Biden rule” (or the “Reid rule”, or the “Obama rule”, or the “Durban rule”).

    • #18
  19. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    Vdare.com has some interesting quotes about Sandoval before he evolved:

    “Sandoval, a Hispanic born in California, supports Arizona’s S.B. 1070 and opposes driver’s licenses for illegal aliens.” July 8, 2010

    “(Lamar) Smith’s final reason for Republican optimism with Hispanics: the election of ‘pro-enforcement’ Hispanics in 2010. He cites senator Marco Rubio (FL); governors Brian Sandoval (NV) and Susana Martinez (NM); and congressmen Bill Flores (TX), Francisco Canseco (TX), Jaime Herrera Beutler (WA), Raul Labrador (ID), and David Rivera (FL).  These Republicans are indeed relatively more restrictionist than Mel Martinez and Alberto Gonzales. But none are as strong on immigration as Smith himself. Not one of the congressmen joined the Immigration Reform Caucus.  With the exclusion of Sandoval and Rubio, not one of these GOP Hispanics supports SB 1070. And the latter’s support very dubious. …  Brian Sandoval got only 33% (of the Hispanics vote), but won comfortably with 62% of the white vote. This was not significantly different from the 30% received by non-Hispanic, and even more vocally anti-illegal immigration, Sharron Angle.” June 23, 2011

    • #19
  20. Autistic License Thatcher
    Autistic License
    @AutisticLicense

    Derek Simmons:It’s game theory according to Chas. Shulz. Charlie Brown is Mitch; Obama is Lucy. And the game is on with Sandoval as the football. Lucy shames Charlie into one more kick at the ball and after Charlie is committed Lucy switches balls from Sandoval to the long-expected Left Wing Living-Constitutionalist we knew was waiting on the sidelines in the willing clutches of the MSM officiating.

    Agreed!  Bait and switch.  Obama will nominate Sandoval, congressional Democrats will oppose, the nomination will go down, and the Dems will substitute another SJW.

    • #20
  21. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Miffed White Male:In order to avoid the Lucy and the Football scenario, \the senate should “advise” the President that they will submit a list of 5 or so candidates that they will consider “consenting” to, all others will be ignored.

    The list should be led by Miguel Estrada and filled out with others of similar caliber (I would also include Ted Cruz on it).

    Estrada, Cruz, Janice Rogers Brown, Micheal Paulsen, Michael Paulsen again, Gary Lawson, Richard Epstein, and John Yoo.

    • #21
  22. I Walton Member
    I Walton
    @IWalton

    let me remind everyone.  It is not about Sandoval or any other pick.  It is about the Biden rule.  That is high ground that can be defended.  Don’t try to get clever because Republican leadership, is not.  Ignore it, ignore the media especially Fox news, ignore everything but the issues, the election, the economy the felon.  Any move toward surrender helps elect Trump.

    • #22
  23. Larry3435 Member
    Larry3435
    @Larry3435

    I Walton:let me remind everyone. It is not about Sandoval or any other pick. It is about the Biden rule. That is high ground that can be defended. Don’t try to get clever because Republican leadership, is not. Ignore it, ignore the media especially Fox news, ignore everything but the issues, the election, the economy the felon. Any move toward surrender helps elect Trump.

    It is not “surrender” to confirm a Republican for the Court, nor to expose Obama as a liar and a scammer.  The “surrender” is for Obama to start nominating Republicans.  What is it with you guys?

    • #23
  24. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    It seems to me that supporting illegal immigrants having driver’s licenses also puts citizens at risk.

    “Most fail test for Nevada driver privilege … 75 percent of applicants have failed the written test needed for the card under a new law that made the state the 11th nationally to offer driving privileges to people in the country illegally.  …  A law passed by the 2013 Legislature and signed by Gov. Brian Sandoval allows immigrants in Nevada without citizenship status to obtain the driver privilege cards.”

    http://www.rgj.com/story/news/2014/01/05/most-fail-test-for-nevada-driver-privilege-card/4333579/

    I think these kind of laws would be considered completely crazy in my state.

    • #24
  25. Larry3435 Member
    Larry3435
    @Larry3435

    Just for the record, Brian Sandoval (who is my Governor) has led the Nevada GOP to a complete take-over of our state government, and has governed as a solid conservative.  Yeah, I know, Earl Warren was a conservative when he was Governor of California.  But so was Ronald Reagan as Governor of California.  There are no guarantees in life, but that doesn’t mean that we must crawl into a cave.

    • #25
  26. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Larry3435:Just for the record, Brian Sandoval (who is my Governor) has led the Nevada GOP to a complete take-over of our state government, and has governed as a solid conservative.

    Good for him.  But what’s his judicial philosophy?

    Better a Communist than a solid conservative on the Supreme Court–if he respects the rule of law and interprets it in the right way (or in a pretty darn good wrong way) and if the conservative doesn’t do both of those things.

    • #26
  27. Quake Voter Inactive
    Quake Voter
    @QuakeVoter

    Robert McReynolds:Two, this could be a trick to get Republicans to say that they would entertain such a nomination just to have someone else put up for the vacancy.

    My reading on this is that the American people have no clue what is going on with the Court.

    Very smart two sentences.  Getting GOP to break their seeming solidarity on the no consideration pledge of their leader based on a strong rumor would be a strategic triumph.

    The actual value of this SC kerfuffle in November is a minor wash.  It is for people completely out of touch with how out of touch the average voter is on political infighting and Constitutional structure.

    Of course, these same apolitical people are very much in touch with the daily reality of the H1B’ing of their lives while the smart set in DC … not so much.

    • #27
  28. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    Joseph Eagar:In the worst case, Obama puts forward a conservative justice who writes mostly conservative opinions, but won’t overturn past liberal precedents, thus greatly reducing the chances of American structural reform happening before we hit the economic and political crises projected to start in the 2020s.

    For example, one can imagine a scenario where SCOTUS strikes down, say, the Wagner Act, and forces even a President Hillary Clinton to embrace sensible labor market reform…

    Out of curiosity, how was Scalia on the Wagner Act? I know Scalia was very anti-Lochner, and generally read economic rights out of the Constitution. Yet I suppose it’s possible for Scalia to have been anti-Lochner, agnostic on economic rights, and still anti-union.

    Would we have expected Scalia to help strike down the Wagner Act if he had lived longer?

    • #28
  29. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    The Republicans can argue against the racism charge by, ironically, pointing to their decision to refuse hearings before they knew who the nominee would be. What seemed like a bad idea at the time could turn out to be strategic genius.

    • #29
  30. Bartholomew Xerxes Ogilvie, Jr. Coolidge
    Bartholomew Xerxes Ogilvie, Jr.
    @BartholomewXerxesOgilvieJr

    I really don’t understand how this would change anything.

    If Sandoval is the best person for the job, then the next president can renominate him and he can be confirmed.

    If he isn’t the best person for the job, why are we talking about him?

    • #30
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