Why politicians make risky Supreme Court nominees

Why politicians make risky Supreme Court nominees
Chief Justice Earl Warren had previously served as governor of California. (Paul Conklin / Time Life Pictures)

Well, that didn't last very long.

I'm referring to the speculation/trial balloon that President Obama was considering Nevada Gov. Brian Sandoval, a Republican and former federal trial judge, for the Supreme court vacancy created by the death of Justice Antonin Scalia.


The story surfaced in the Washington Post on Wednesday, was neither confirmed nor denied by the White House and officially died Thursday when Sandoval pulled himself out of consideration.

But in the meantime there was some flak. Hillary Clinton, who has supported Obama's right to replace Scalia, said of Sandoval: "I know the governor has done some good things, but I sure hope the president chooses a true progressive, who will stand up for the values and the interests of the people of this country, who understand that you need to protect the right to vote of a person, not the right of a corporation to buy an election, who will understand that we still need the Voting Rights Act to be enforced, because too many people are being deprived."

Translation: Sandoval wouldn't be enough of a predictably liberal vote on the court.

Conservatives also weighed in against Sandoval. On National Review's website, under the headline "Obama's GOP Trojan Horse for the Supreme Court," John Fund decried Sandoval's "liberal leanings [which] transcend abortion." For example, Fund wrote, Sandoval "vetoed bills limiting punitive damages in civil cases and limiting the inclusion of third parties in product-liability lawsuits. "

One of the first emails to land in my inbox this morning came from the Brady Campaign to Prevent Gun Violence. The message line read: "SANDOVAL UNFIT FOR SUPREME COURT."

Why? Because Sandoval vetoed legislation to expand background checks to all gun sales, saying that "background checks... constitute an erosion of Nevadans' Second Amendment rights under the United States Constitution."  The Brady group's assumption (which is not necessarily accurate) was that a Justice Sandoval would take a similar view if he had to rule on gun-control legislation.

Whether or not Obama was seriously considering Sandoval, the backlash demonstrates the pitfalls of the idea of an elected official — governor or senator — as a Supreme Court nominee. As I mentioned in an earlier post, it was once fairly common to appoint justices with political backgrounds to the court. (Chief Justice Earl Warren was a former California governor, for example.)

Some commentators are nostalgic about the practice. Here's how Gordon Silverstein, a political scientist at UC Berkeley, put the argument in 2009:

"While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century."

But here's the problem: Present and former governors and senators necessarily take public positions on a lot of controversial issues, sometimes in demagogic language. They also rely on campaign contributions from special interests that would provide fertile ground for opposition research in a contested Senate confirmation process.

It's no accident that so many recent appointees to the court have been sitting judges whose resumes include teaching and non-elective positions in government. So long as appointments to the court are highly politicized, a president has no incentive to choose Supreme Court nominees with a partisan paper trail. Why (as it were) court trouble?

Sure, a judge who has rendered controversial legal decisions will also encounter resistance, but a nominee who has a run a state government or served in Congress will bring the much heavier baggage of stump speeches immortalized on YouTube, political enemies, and associates or appointees who said or did something embarrassing or illegal. These are unforgiving times in politics.

Judges are so much safer.


Follow Michael McGough on Twitter @MichaelMcGough3