Blog-favorite Megan McArdle has a column on replacing Justice Scalia, which largely tracks what I wrote yesterday. The reason she’s a blog-favorite, though, is the insight she adds about the political process:
But [getting your way through the court rather than legislature] doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.
I failed to point this out yesterday, but she’s right that the fights you would normally have in the legislature through voting and lobbying (on abortion, gay marriage, campaign finance, etc) are now fights about stacking the federal courts. Getting your way on an issue here or there is nice for the people involved, since it’s difficult to pass constitutional amendments on a contentious issue, and also rare that SCOTUS overrules an important precedent quickly. However, The same goes on issues you lose on, so for most people in the political mainstream it’s a wash. (Worse, making something constitutional law is an inflexible approach, while democratic legislating is at least adjustable.)
Now, instead of having to lobby for a law, you have to make sure to elect senators who will approve judges you like. All the issue-specific voting and lobbying is now transferred to the legislative level. This has led to higher and higher polarization as all issues, effectively, are handled this way, rather than one-by-one. Meanwhile, the energy and money spent on lobbying has to go up because each election is so much more consequential.
Basically, this is a stupid system.