Law & the Courts

Brian Sandoval: Obama’s GOP Trojan Horse for the Supreme Court

Sandoval in 2011 (Ethan Miller/Getty)

The Wall Street Journal reports that the White House is vetting Nevada’s Republican governor Brian Sandoval for the Supreme Court.

On Sunday night, Governor Sandoval sat at the president’s head table at a White House dinner in Washington. The next day, the governor requested and secured a meeting with Harry Reid, the Democratic Senate minority leader from his home state. Reid has put Sandoval on the short list of recommended candidates he has sent to the White House. The fix may be in, and it would be horrific news for conservatives: Sandoval is the most liberal of the country’s 29 Republican governors.

On Tuesday, Senator Reid pledged to reporters that Senate majority leader Mitch McConnell would be under great pressure to hold hearings on President Obama’s nominee for the Court. “He hasn’t seen the pressure that’s going to build. It’s going to build in all the facets of the political constituencies in the country,” Reid said.

How better to apply pressure than to appoint a Hispanic Republican — and former federal judge — who might fracture the united front of GOP senators who have come out against an Obama nomination?

The mainstream media would no doubt paint GOP opposition to Sandoval as largely based on his clear pro-choice views on abortion. Last year, the governor pressured legislators not to send him an abortion parental-notification bill for minors even though he had campaigned in favor of the concept. Look for Republicans to contrast Sandoval’s stance on abortion with the fact that he has signed bills requiring parental notification for minors deciding to be organ donors or for anyone under the age of 18 who wants to use a tanning booth.

But Sandoval’s record clearly demonstrates that his liberal leanings transcend abortion.

“There’s way more opposition to the governor within the Republican legislative caucus than the Democratic one,” David Damore, a professor of political science at the University of Nevada at Las Vegas, told Politico.

The mainstream media would no doubt paint GOP opposition to Sandoval as largely based on his clear pro-choice views on abortion.

“He has been a consistent barrier to reform measures in Nevada,” one state legislator told me. “We asked him during his first term in 2012 why he couldn’t be more like Scott Walker, and he pointed to the Democratic legislature and said things would be different if the GOP had a majority. Well, in 2014 we gave him a majority in both houses for the first time since the Great Depression and he went to war with conservatives.”

A prime example is tort reform, an area where Sandoval has given lip service to supporting reform. But as governor he vetoed bills limiting punitive damages in civil cases and limiting the inclusion of third parties in product-liability lawsuits. Moreover, his judicial appointments have been lackluster, and one of his appointments to the new state court of appeals had a clear liberal track record and was a former staffer for Harry Reid.

#share#On taxes, he has been the moving force behind the largest tax increase in Nevada’s history. In 2014, a stunning 79 percent of Silver State voters rejected a gross-receipts tax applying to business with over $1 million in revenue. Sandoval didn’t back the tax, but as soon as he won reelection that year, he proposed a similar tax with a threshold of $4 million in business revenue and rammed it though the legislature. “He traded away every kind of conservative reform measure on the table in order to get Democratic votes to pass his billion-dollar-plus tax increase,” conservative activist Chuck Muth told me. And Sandoval made clear to GOP legislative leaders that he wouldn’t sign bills that included popular measures to require voter ID at the polls or collective-bargaining reform for state employees. In 2013, he signed a bill allowing undocumented aliens to obtain a driver’s license.

Nor does the governor’s conservative apostasy end there. Sandoval is the only GOP governor who both expanded Medicaid in his state and set up a federal health-care exchange. (John Kasich famously expanded Medicaid but balked at an exchange.)

Sandoval is the only GOP governor who both expanded Medicaid in his state and set up a federal health-care exchange.

“There’s been this dramatic betrayal,” Republican assemblyman Ira Hansen, a Ted Cruz backer, told Politico. “Sandoval went totally moderate liberal on us. If there was a referendum tomorrow, you’d find a dramatically different result among the Republican-party base.” Indeed, Cruz took a shot at Sandoval during a rally in Reno on Monday, when he called out the governor’s support for tax increases after saying he would oppose them.

Other conservatives shudder at the notion of Sandoval on the Supreme Court. “He was an undistinguished district-court judge for four years, and that’s the sum total of his judicial experience,” one of the state’s most respected lawyers told me. “He’s a politician who bends with the political winds but would make liberals far more happy than not, from campaign-finance issues to immigration.”

#related#Even on the one issue where Sandoval earns conservative praise — his signing of an expansive program of education savings accounts to provide choice for Nevada students — there is a huge caveat: When the ACLU asked the courts to halt the state’s implementation of ESAs, Sandoval publicly called for a robust defense of the law. But behind the scenes he opposed the state’s attorney general partnering with former U.S. solicitor general Paul Clement to fight the suit. Since 2000, Clement has argued more cases before the U.S. Supreme Court than any other lawyer; he represented the plaintiffs in the high-profile Obamacare and Hobby Lobby cases. According to a lawyer familiar with Nevada’s Board of Examiners, a body that includes Sandoval as a member and had to approve the contract with Clement, “The governor’s office didn’t want the Clement contract, but the governor publicly supported it when it became clear he didn’t have the votes.”

The sources I’ve spoken to in Nevada tell me that, if Sandoval is appointed by President Obama, you can expect him to be a master politician if any confirmation hearings are held. “He will say things that please both sides, just as he has in Nevada,” one state legislator told me. “He will fuzz up his judicial philosophy and say he has an open mind. But the record on how he has governed in Nevada speaks volumes.”


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