Editorial: The vain hope for independence on the high court

Senate Majority Leader Mitch McConnell is about to demonstrate what really has become of the U.S. Supreme Court.

The question of whether the court has ever been something other than a tool of the dominant public and political interests of the day is a subject best left to a doctoral thesis or broad historical review. But the circumstances in which we find ourselves upon the resignation of Anthony Kennedy demonstrate unequivocally the lamentable state of a court that is governed - and formed - more by political partisanship than by the thoughtful independence envisioned in the creation of this third branch of our founders' brilliant checks-and-balances system.

Chief Justice John Roberts himself expressed dismay about the politicization of the court when, in a 2006 interview with Jeff Rosen of The New Republic on the anniversary of his ascent to leadership of the court, he said he was making it his mission to avoid 5-4 rulings that suggest ideological polarization rather than sound judicial consensus. "I think the Court is ripe for a ... refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution," Roberts said.

What the court is ripe for 12 years later appears to be anything but credibility. Its recent history has been a succession of landmark decisions determined on a 5-4 vote, with Kennedy appearing to be the only justice whose conclusions weren't predictable.

So, we find ourselves in an era when political reliability appears to be the dominant criteria for identifying a Supreme Court justice - and partisan maneuvering appears to be the only factor behind the confirmation process.

In blocking a vote on a nominee by Democratic President Barack Obama for seven months before the 2016 presidential election, Kentucky Republican McConnell insisted that "the voters should have a say" in the selection of a Supreme Court justice. Now, with a potentially decisive midterm election that could change the complexion of the Senate just four months away, McConnell says the Senate "stands ready to fulfill its constitutional role." Utah Republican Orrin Hatch, who argued in March 2016 that it was appropriate to delay a vote on Merrick Garland to keep "election-year political theater" out of the process, now tweets that that doctrine applies only to presidential elections, not midterms.

Partisans can apply whatever descriptions they like to such doctrinal contortions, but one observation - transparent - cannot be denied.

The nation's highest court is losing the one justice who could occasionally step away from ideological inclinations, and the process to replace him will hinge on whether it can be rushed or delayed to ensure the next justice's actions will be even more predictable. Chief Justice Roberts' professed vision of a credible and ideologically independent Supreme Court is not coming closer. Mitch McConnell's - and that of politicians on both sides of the aisle - of a court whose rulings can be directed by political whim is.

We've got to believe the founders expected the nature of checks and balances would be more than that.