Following in Hugo Black's shoes?

Photographer: Win McNamee/Getty Images

Obama Could Taunt the Senate as FDR Did

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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President Barack Obama insisted that his post to Scotusblog on Wednesday about his criteria for a U.S. Supreme Court nominee was “spoiler free.” But he may have been protesting a bit too much. Obama wrote that he sought a justice with “life experience outside the courtroom or the classroom,” which possible nominees like Judge Sri Srinivasan of the Court of Appeals for the D.C. Circuit arguably lack. Then, later in the day, someone in the administration leaked a highly untraditional candidate, Republican Governor Brian Sandoval of Nevada, who has political life experience and was also a federal district judge for four years.

QuickTake U.S. Supreme Court

It’s impossible to know whether Sandoval's name is being floated just to taunt Senate Majority Leader Mitch McConnell, who has vowed not to consider any Obama nominee. But if Sandoval were nominated, it wouldn’t be the first time a president nominated a justice mostly to send an “Oh, yeah?” message to the Senate.

President Franklin Delano Roosevelt nominated Hugo Black to the Supreme Court when a seat came open in May 1937, in the aftermath of Congress’s narrow rejection of his court-packing plan. Roosevelt hated to lose, and even though the court’s famous “switch in time” arguably created by his plan meant the justices had stopped striking down New Deal legislation, the president was still angry.

He could’ve nominated a traditional candidate like Stanley Reed, his solicitor general, whom he did subsequently put on the bench. But instead he hit on Black, who was widely considered the most radical member of the Senate. Black was broadly supportive of the New Deal, but he wasn’t a pure Roosevelt loyalist. He’d voted against the National Industrial Recovery Act, and thought the answer to Depression-era unemployment was a shortened workweek.

Black had no judicial experience to speak of, except a short stint in his 20s as a police court judge in Montgomery, Alabama. When asked privately about Black’s candidacy, then-professor Felix Frankfurter told Roosevelt's representative that unlike Reed, who would be ready from Day 1, Black would have to “muster an immense amount of rather technical jurisdictional learning.” (The same is true, roughly speaking, of Sandoval.)

Nominating the distinctly nonjudicial Black sent a very specific message to the Senate, namely that the business of the Supreme Court was politics, not just law. Roosevelt had made exactly the same point when he had pushed to pack the court -- and been rebuffed.

Yet Roosevelt also calculated that the Senate would have no choice but to confirm Black. The reason was simple. Black was a senator, and the Senate was the ultimate gentlemen’s club. The senators wouldn’t be able to reject one of their own without losing face. Thus, Roosevelt would force the Senate to admit, through the confirmation, that the court was a political body.

He was right. The nomination went to the Senate on Friday, Aug. 12, 1937. The Senate confirmed him the following Wednesday, Aug. 17. Only later would it come out that Black had been and conceivably still was a member of the Ku Klux Klan -- but that’s a story for another day.

Nominating Sandoval would be a similar move. If the Republican Senate blocks him, then it’s blocking a fellow Republican. Obama would appear to be showing bipartisanship, while the Senate would appear nakedly partisan.

The fact that Sandoval is Hispanic would be icing on the cake. The Democratic nominee for president will have to motivate the party’s base to win the election in November. If the Republican nominee is Marco Rubio or Ted Cruz, motivating Latinos to vote the other way will be especially important. Putting Sandoval in a position to be rejected by the Republican Senate could only help. (If Donald Trump is the nominee, one suspects no extra motivation will be needed for Latinos to vote Democratic.)

Whether Obama really wants Sandoval on the court is another matter. Sandoval is on the record as supporting abortion rights, but as a George W. Bush judicial nominee, he hardly seems likely to espouse the liberal judicial philosophy that Obama’s supporters would like to see on the court.

The danger Obama faces if he nominates Sandoval is that the Republicans will call his bluff and confirm Sandoval. Roosevelt was willing to live with Black, even after his Klan affiliation was revealed. If Obama plans to try his own version of an “in your face” nomination, he’d better be willing to accept the consequences.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net