• Mario Nicolais

Going all in on SCOTUS

I like playing poker. Texas Hold’em in particular. Ever since I saw Matt Damon draw John Malkovich into going all in at the end of “Rounders,” I’ve been hooked. And, judging by the increased tournament stakes, ESPN replays, and sheer number of professional players, many others have, too.


Apparently, that also includes the key players involved in the selection of the next associate justice of the U.S. Supreme Court.


Before Justice Antonin Scalia’s passing, the Supreme Court had been split 5-4, conservative-liberal. On occasion some of the conservative justices swung to the other side, but Justice Scalia was almost never among them. Consequently, the court is now 4-4, and the next justice could shape legal outcomes for decades. Those are the stakes our nation’s highest elected officials are playing for — and with a Democratic president and Republican Senate, the showdown is compelling.


And they are playing their hands just that way.


In the immediate aftermath, President Obama didn’t take any strong positions. While granted the authority to nominate a new justice, he didn’t seize the moment to attack. Instead, he checked (or passed) to the Republicans. He played coy.


Republicans opened bidding by declaring that President Obama shouldn’t nominate a new justice; he should instead wait until the next president, elected in November, takes office in a little less than a year. That is a strong opening and implies resolve and a good hand.


In response, President Obama check-raised. That is an advanced tactic. It means that after passing on the opportunity to open betting, the president chose to bet even more than the Republicans, testing their resolve and luring them into an even bigger bet. It means the president either thought his hand is very, very good, or he made an exceptional bluff.


President Obama’s check-raise took the person of Gov. Brian Sandoval, a Republican governor of swing-state Nevada. At 52, Sandoval is a young Latino conservative who previously served as the Nevada’s attorney general and as a federal district court judge. His previous appointment to the federal bench received unanimous support in the U.S. Senate. Basically, he represented the most conservative nominee Republicans could ever hope for from a Democratic president.


By leaking Gov. Sandoval’s name among those being vetted for the short-list, President Obama put Republicans to a very serious choice. Republicans could have made an immediate about-face and called, hoping to catch the president in a bluff. Instead they stayed the course and re-raised.


The gamble from Republicans is huge. First, they are gambling that they will retain control of the U.S. Senate. Currently, Republicans hold a 54-46 advantage (including independents caucusing with Democrats). Of the 10 most competitive seats up for election this year, eight are held by Republicans who won in the 2010 wave year. If Democrats hold their own seats and win five of the eight, they take control outright. Republicans are betting that doesn’t happen.


Second, and even more audacious, Republicans are betting they will win back the White House. I don’t have the space to get into that question — or even whether all the Republican candidates could be counted on to pick someone like Justice Scalia. Suffice to say it isn’t a “sure-thing.” It feels much closer to drawing to an inside straight.


Lose those bets, and Hillary Clinton or Bernie Sanders will name the nominee of their choice. And their nominee won’t be remotely as conservative as Gov. Sandoval. Think more along the lines of Justice Elizabeth Warren.


Whatever the outcome, the game will be as good as watching Johnny Chan take down Erik Seidel in the 1988 World Series of Poker.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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