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Game Theory Time: SCOTUS Edition
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:
- Why now? Obama isn’t exactly known for upholding constitutional norms.
- 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.
- 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.
Published in General
As I recall, when Sandoval was previously on the federal bench he was confirmed unanimously by the Senate. You want to compare him to perfect. I say, compare him to the alternative that you will actually get. Do you think Hillary would appoint someone better? Do you even think that Trump would appoint someone better?
Real world, please. Real world.
Right after hell froze over Midge. If SCOTUS were to outlaw unions in this country, I predict that the Constitutional Amendment reversing that decision would be adopted within a year.
Besides, there is no valid Constitutional argument for outlawing unions. In fact, I think there is something in there about freedom of association, which would include associations of workers.
Mexicans with a Mexican driver’s license can legally drive anywhere in the US. For that matter, you can drive in Mexico with your driver’s license. Nevada does issue licenses to legal residents, including aliens, but those licenses are marked “LIMITED TERM” and are not considered ID’s for purposes of voting.
Its a hedged bet. Obama probably doesn’t think HRC could win, so put in a moderate Republican in and get yourself another Kennedy, or gamble on not winning the Election and allowing Ted Cruz to be the next nominee.
It would be classic for Bill Clinton to take a half win like that. Obama has previously shown he would rather throw a half glass of water in his opponents face than split a drink with them.
Right now, its just an unnamed staffer floating a trial balloon.
Good for him. But what’s his judicial philosophy?
Assuming I’m looking at Hillary vs. Trump vs. Sanders, maybe Sandoval is the best. I don’t know what to expect from Trump, though I wouldn’t be surprised if he nominated a solid Originalist.
But Cruz and Rubio are still possible (says I, as my hopes fade a little more each day), and they’re sure to nominate better than Obama.
I hope you’re right, although I am pretty pessimistic. But if that happens, we will know by the time any nominee would be subject to a vote, and I would be happy to re-evaluate my position. As you know, I am a Pragmatist (capital P). I want the best we can get. Waiting for perfect is unrealistic. In fact, waiting for perfect is a recipe for disaster.
Well, duh. But my understanding is that striking down the Wagner Act would not outlaw unions, merely put unions on equal footing with other forms of free association by stripping unions of privileges that no other group of freely-associating people gets.
After all, there were unions before the Wagner Act was passed, so I don’t see how striking down the Wagner Act would turn unions illegal.
Because without the Wagner Act, unions would violate the antitrust laws. Unions are, by definition, combinations in restraint of trade.
Well, how useful, really, are the antitrust laws? I’ve heard several economists claim that the antitrust laws do not have their intended effect? (Plus, if the antitrust laws violate union members’ right to freely associate, then why aren’t antitrust laws unconstitutional?)
I’m not holding my breath, either, for a SCOTUS that would strike down the Wagner Act, or antitrust laws, or rehabilitate Lochner, or anything like that. It’s just that Joseph mentioned striking down the Wagner Act in the OP, and that seemed to me utterly unlikely no matter how Scalia-like the judge filling the SCOTUS vacancy is.
It would seem to me conservatives desiring to also rehabilitate economic freedoms would want more Thomas clones, not Scalia clones on the bench.
It strikes me that the right approach to the Wagner Act is for Congress to repeal the most egregious parts of it. Don’t make collective bargaining mandatory on the part of employers, for example.
I’ve always been told that the 1993 Motor Voter Law is a gateway to all sorts of voter fraud. Do you disagree?
I’d put James O’Keefe and Project Veritas on the case before the liberals try to intimidate and throw him in jail again.
I think the Motor Voter Law is bad for all kinds of reasons. In fact, I disagree with the whole idea that everyone should exercise their right to vote. To quote Aaron Sorkin (from memory, so maybe off by a little bit), “Why do we care about people who are too stupid or apathetic to raise their hand?”
What I object to is evaluating a Supreme Court nominee by saying something about driver’s licenses (especially something that is factually untrue) and then treating that as the end of the story. This is serious.
Republicans better not give in. Sandoval is a Trojan horse. He is not conservative. From what I understand, he’s pro-abortion. There is no way the conservative base will support anyone even remotely pro-abortion. No friggin way. If Sandoval is really a Republican at heart and not of convenience, he should remove himself from consideration and from Obama’s toying.
Completely agree. The Democrat’s abuse of the SCOTUS picking process for the last 25 years is enough of a reason to refuse anyone – anyone – that Obama proposes. Even if he proposed the next Antonin Scalia the Republican Senate should not consider it until after the elections.
What really galls me is that the Dems have been saying how irresponsible the Republican Senate is to not go forward with a SCOTUS selection. Well, how irresponsible was it that for three years the Dem Senate refused to pass a budget? No, let the Dems eat a crap sandwich now.
Joseph,
So let’s sum up. Sandoval is:
So what part of “Not a snowball’s chance in Hell” does his resume change?
Regards,
Jim
If only there was some sort of a computer network, with a search engine, that would allow people to look up a politician’s record. They could call it, like, the “interweb” or “giggle” or something like that. If such a thing existed, people could look up Sandoval and find out, for example, that he is listed as a “climate change denier” by every leftist and green web site, including
Think Progress
http://thinkprogress.org/the-2015-climate-guide-to-governors/
and barackobama.com
https://www.barackobama.com/climate-change-deniers/brian-sandoval-nevada/
But then, it’s so much easier to just make up stuff.
Sandoval has declined consideration for the nomination. Smart man.
Nice try, Obama.
Larry,
The question would be whether Sandoval is a moderate giving lip-service to conservatives to get elected or a conservative. I read your think progress piece. The lefties were upset because he side-stepped the issue of man-made global warming. Meanwhile, he destroyed the coal industry in Nevada. The lefties are also upset because he supports “studying” a plan to take away Federal land management and supplant it with State management. I’m sure if you are a rancher and are having your land stolen from you by phony EPA regulation it makes a great difference to you that the moderate Republican Governor wants to “study” the problem.
John Roberts has made a career on the court of sounding conservative and then when push comes to shove selling out. I think we are a little beyond that now.
Regards,
Jim
Not just smart. Classy. I know Sandoval would love to serve on the Supreme Court, but he wasn’t going to be a pawn for Obama. Good for him. I feel certain that the Justice we eventually get would not be so classy. Or so conservative. I was so disappointed when Sandoval decided not to run for Harry Reid’s Senate seat.
Striking down the Wagner Act would not ban unions, and like you said, Congress would quickly enact a replacement. Look, American unions are dysfunctional and self destructive. I have an uncle who lost his trucking job when the Hostess baker’s union brought down the company. What America needs is the ever-hated “company unions” labor activists here hate so much, but works so well in Germany, Sweden, Norway, Japan, etc.
That brightened my day. You’re right, that does show class.
The Republican leadership has already said they will not entertain any Scalia replacement nominations, that they intend to follow the long tradition of waiting to fill the vacancy until after the election.
Do we not expect our leaders to mean what they say, and to follow-up?
Thus, to entertain any nominations would be “not meaning what they say.”
Is that so hard to comprehend and to adhere to? The machinations, prognostications, and strategery are what get us in to trouble. I wish we could move forward on principles and forget the game theory already.
I have been a management-side labor lawyer for the last 35 years. By and large, our labor laws are not that bad. Our employment laws (governing non-union workers) are spiraling out of control, but the labor laws work pretty well. There is a lot more support for overhauling the labor laws among unions than there is among employers. Unions hate having to win a secret ballot election, because they usually lose.
“Company unions” are still illegal, are they not? Isn’t that the real reason unions lose elections, that they’re forced to be more adversarial than is really in the worker’s best interest?
This is something I will never understand: A union vote that is not by secret ballot. It is incomprehensible to me that it would be anything other than secret ballot. That is how we do some of our most important voting here in the USA.
I’ve never understood it either. I remember being very happy after the 2010 elections killed that particular bill. Seriously, who calls a bill taking away workers rights “the Employee Free Choice Act”?
Democrats.
Assuming this is not a head-fake, what matters most is how Sadoval would interpret the Constitution.
A site called OnTheIssues gathers his views about a host of issues. Here are three encouraging and relevant examples (emphasis mine):
1. “I have a profound respect for the United States Constitution and believe it should be strictly interpreted. The Tenth Amendment, which is the foundation for the expression of state’s rights, is extremely important in the face of continued federal intrusion upon state’s rights. As Governor, I will aggressively protect Nevada’s state’s rights under the Tenth Amendment of the U.S. Constitution.”
2. “As a former Federal Judge, I respect the rule of law. I strongly believe that the 2nd Amendment applies to individuals. I believe that all citizens have a right to firearms for sporting and self-defense purposes. I also support concealed carry laws.”
3. Supports lawsuits against Obama health care bill
Yes, he’s pro-choice, that’s not necessarily the same as his constitutional view. In any case, he opposes late-term abortions and federal funding of abortions. So even if Sandoval believed the constitution magically mirrored his policy views on the matter, it seems that he wouldn’t be expanding Roe.
With Trump and Hillary the most likely nominees at this point, the Senate should begin the process and vote to confirm if presidential electoral prospects look dim this fall. He’s no Scalia, but could be the best we do under the circumstances.
Company controlled or dominated unions are illegal in the US. But I don’t think that’s why unions lose elections. They lose because they mostly can’t do any good for their members, and the dues are expensive.
The only time a union can benefit its membership is if there are economic rents to be captured. That generally happens only when there is monopoly power at work. The most common example is public sector unions. The government, of course, is a monopoly. When an industry loses its monopoly power (e.g., the auto industry when it began facing foreign competition) then the economic rents dry up. When that happens, either the union backs off, or the industry faces bankruptcy. Unions cannot benefit their membership if the employer is operating under truly free market conditions, because there is no “extra” money to pry out of the employer.