Ruth Bader Ginsburg passed away last week, opening up a spot on the Supreme Court even as election day looms. The fight over her replacement is already heating up. But there’s a far bigger problem underlying the battle over which politically connected lawyer sits on the Court next.
Regardless, let the political theater begin.

I’m already enjoying watching Republicans do rhetorical gymnastics to explain the difference between blocking Obama’s nominee during an election year and rushing a Trump nomination during this election year.

“This is different!”

Yes. Whatever.

Here’s the thing — it doesn’t really matter.

As I explained recently, you shouldn’t be depending on federal judges to protect your liberty or the Constitution. They aren’t committed to your liberty. They aren’t even committed to the Constitution. They are mostly committed to precedent. And most precedent is unconstitutional.

Nevertheless, we will see significant wailing and gnashing of teeth as this SCOTUS hubbub plays out. To most Americans, there is nothing more politically significant than who sits on the Supreme Court.

And that reveals a big problem.

No sane political system vests so much power in nine politically-connected lawyers.

The American founding generation certainly didn’t. In fact, Alexander Hamilton argued that the Court would be the weakest branch of the federal government. But here we are – living in a world where nine lawyers in black dresses wield almost absolute power.

I kind of think maybe we should rethink this.

I’m reminded of a pretty prescient observation by Littleton Waller Tazwell, who served in the U.S. House and Senate, and as the 26th governor of Virginia.

“For the Judiciary of the United States, I entertain at least as much respect as I do for any other Judiciary. I will not say more; and I cannot say less. With the individual Judges, I have nothing to do. They shall all be, if any one thinks so, what some of them certainly are, ‘like Mansfield wise, and as old Foster just.’ But all must know that the robes of office do not cover angels, but mere men, as prone to err, as any other men of equal intelligence, of equal purity, and of equal constancy.

We all know, too, that some of the supreme Judges of the United States have not thought it unbecoming their high places, to accept Foreign Missions, to present themselves as candidates for other offices, and to enter into newspaper disquisitions upon party topics. I do not mean to blame them for such things, but merely to shew from such facts, that the rights of sovereign States, when assailed by the government of the United States, could not be safely confided to a forum so constituted, even if it was possible that it could take cognizance of the subject.”

The root of the problem is that so many people have embraced this absurd system that empowers judges to run their lives. As a result, many will view this SCOTUS appointment as very nearly a matter of life and death.

I don’t. And I won’t. I refuse to get caught up in D.C. political theater. I think there’s a better way forward.

Mike Maharrey

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