With Monday night’s announcement that he’s nominating D.C. Circuit Judge Brett Kavanaugh to fill the seat vacated by Anthony M. Kennedy, President Trump moves one step closer to shifting the direction of the Supreme Court for a generation or more. As the swing vote in closely divided cases, Kennedy single-handedly decided some of the most controversial issues in America. Trump’s decision to tap Kavanaugh leaves Republicans hopeful that more of those cases will now be decided in their favor.
It’s not hard to see where this is headed. Republicans are already preparing to spend millions of dollars on a political battle to help cement a 5-4 conservative majority on the Supreme Court by confirming Trump’s nominee. Liberals will, in turn, lose their minds. When Democrats next gain unified control of government, they could pack the courts. It’s the logical tit-for-tat for the “stolen” seat President Barack Obama nominated Merrick Garland to fill. But then what happens? Play another round of tit-for-tat, and the future looks unsustainable. That so much is riding on one Supreme Court seat is a testament to how broken our politics are.
There is only one way to get out of the vicious cycle ahead of us: We need to stop thinking of the Supreme Court as the final arbiter of every controversial issue in American politics. Short of that, we must make it harder for the court to act decisively in controversial cases. This could be done by requiring an even number of justices picked by a majority and a minority in the Senate. Let the court deadlock more, and let democracy do the hard work of politics, instead of lawyers and judges…
For decades, conservatives have complained about judicial supremacy intruding onto politics, leaving decisions that belonged in the hands of the people and their elected representatives to nine lifetime appointees. Liberals, now for the first time in 80 years, are coming to understand why that’s such a problem.
We’re at a unique moment when everyone should be open to change. It’s a moment for senators to bind together and think about the political legacy they’re leaving. Now is the moment to defuse the hypertrophy of the Supreme Court as the final arbiter of complicated political fights, and return politics to where it belongs: to the public.