As Justice Antonin Scalia has said, the court’s job is to ascertain “objective law,” not determine “some kind of social consensus,” which I believe is the job of the judges on American Idol.In the light of Scalia's dictum, it's kind of depressing to see both Left and Right nevertheless treating the question of his successor as if we were electing some sort of omnipotent priest-king. MSM Big Foot Jeff Greenfield, in How the Supreme Court Became a Hot-Button Issue [POLITICO, February 19 2016] claims this hyper-politicization dates back to the Clarence Thomas confirmation struggle. But actually it dates back at least to Brown vs. Board of Education, when the Supreme Court arbitrarily decreed that the U.S. Constitution required desegregated public schools—a decision which, however desirable as public policy, was clearly legislation, not law.
The traditional remedy to judicial imperialism: appoint judges who actually believe in the law. This was the answer I supported in my October 1981 Harper’s Magazine article, Supreme Irony: The Court Of Last Resort.
But that was thirty four years, and five Republican Administrations, ago. It just hasn’t worked. Indeed, Republican Senators were wholly unable to mount an effective opposition to Obama Supreme Court selections Sonia Sotomayor and Elena Kagan, although both were plainly just ethno-Leftist political commissars.