Long ago, Congress surrendered its legislative authority to regulators, because that was easier than developing and passing clearly written laws. There was a somewhat reasonable assumption experts within agencies might better understand some complex issues for specific regulatory mandates, but any technocracy still requires oversight.
And somewhere along the way, Congress surrendered its oversight role of the executive branch. Partisanship meant letting “our president” do whatever he wanted (so far, all “he” in the White House). Only when the opposition-controlled a house of Congress was there any serious investigation — though these were politicized efforts, often as flawed as no oversight at all. (The GOP has mastered both extremes: no oversight and absurd oversight.)
The judicial system seems somewhat saner than the runaway executive and the party-obsessed legislative branch. Imperfect, yes, but more restrained and less damaged than the other two branches. That’s not saying a lot, but most of us remained respectful of the courts. Overall, the criminal justice and civil courts seem to function as best as human institutions might.
For the last few years, though, the dysfunctional Congress has done what it can to ruin the courts.
Yes, partisan Democrats will blame Bush v. Gore and Citizens United, but these cases — if you actually read them — were still reasoned and within the norms of legal theory. The complexity of Citizens United and the legal history of corporations as legal entities deserves examination, but political parties prefer simple slogans.
No, the Republicans have made the court more overtly political than at any time since FDR tried to pack the bench.
Now, no matter what happens in the Brett Kavanaugh confirmation hearings, partisans will be unhappy. If he is not confirmed, a lot depends on which party controls the Senate. If the GOP controls the Senate, expect any replacement nominee to be more socially conservative than Kavanaugh.
What’s sad is that the bulk of the legal system exists at the local and state levels. District Courts and even the Supreme Court do most of their work with quiet efficacy, following legal precedents and interpreting laws.
By making the Supreme Court a political issue, Republicans damaged the perception of independence enjoyed by the legal system. Not that Democrats are innocent bystanders, either, and now expect the next Democratically controlled Senate to be as bad as the Republicans have been.
Congressional dysfunction is damaging all three branches of government. The clowns pontificating and campaigning in the Senate are only the current illustration of the problem. The House and Senate need to be reformed, somehow, to restore the requirements that led to compromises. Killing the filibuster was a mistake, I argued at the time. Harry Reid and the Democrats should apologize to the nation for the result of their hubris.
As a classical liberal, I believe that the legislature should be first among equals. Congress, however, seems to be engaged in one long, endless campaign. Slogans and grandstanding replaced statecraft thanks to television and, today, the Internet. Social media have led to Senators trying to go “viral” with their latest rants. House members are even more desperate, as they must compete for exposure.
They gave away legislative power to regulators. They surrendered oversight and created the Imperial Presidency. They prefer media exposure over doing their jobs.
I suppose Congress is first among equals. It’s the worst of the three branches – but only because the executive is a huge bureaucratic machine that operates a bit disconnected from the White House.
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