“Heads I win, tails you lose.” One of the surest things in politics is people seeking to stack the deck in their favor. Since we seem to have more reliance than ever on the courts over legislative bodies and popular votes to settle both governance and social issues, the focus has been on trying to make sure those bodies are filled with individuals who will promote our issues and causes. Kelli Lundgren’s plea for a “moderate” to replace Scalia on the Supreme Court is no different.
Until Scalia’s passing, the court was pretty evenly divided for about the last 20 years. Four conservative justices, four liberal justices, and one “swing” vote that could go either way ensured that there was no ideological dominance of the process by any given side. True to that form, it has managed to turn out decisions that delighted and infuriated people of all political stripes about evenly. With our system currently treating the SCOTUS as the final arbiter of all law in an increasing number of cases, it’s more important than ever to ensure that it isn’t a steamroller organization.
On the surface, asking for more moderate replacements seems to reduce the deadlock between the liberal and conservative wings. Slim majority decisions largely decided on immovable blocs tend to drive deeper divides in politics. If you don’t believe me, just see how the ACA has panned out after passing with the slimmest of possible legislative majorities.
That balance, though, depends entirely upon equal replacement of justices from both wings. The current request to replace a conservative justice with a moderate one is Lucy asking Charlie Brown to kick the football. You can be sure that changing the balance of the court to include 4 liberals, 3 conservatives, and 2 swing votes is intended to ensure more liberal decisions handed down from the courts. There will be no reciprocation should, say, Justice Ginsberg decide to retire. This is a bigger deal since Congress rarely, if ever, asserts its constitutional authority to limit the authority of the Supreme Court. (Go read Article III, Section 2 if you don’t believe Congress can do that.) In fact, Congress seems content to abdicate much of its authority to both the executive and judiciary.
So, no, I’m not going to be receptive to the plea to appoint more “moderates” to the Supreme Court until there are two vacancies at once, one liberal and one conservative. Anything else is a trap.