Ideology first, justice second

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At state and federal levels, courts increasingly reflect polarized times.

WHEN JUDGE Brett Cavanaugh is confirmed to the U.S. Supreme Court - a rejection by the Senate seems highly unlikely - the highest tribunal in the land will take a hard right turn.

That's because there are four predictable liberals on the court - Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg - and four predictable conservatives - John Roberts, Samuel Alito, Clarence Thomas and Neal Gorsuch. Retiring Justice Anthony Kennedy, though considered right of center, frequently cast the swing vote and sometimes sided with his more liberal colleagues.

For years, capturing the court has been an issue driving elections for conservatives. That dream is about to become reality.

FOR DEMOCRATS, the courts have not been as visible or motivating among issues as for Republicans. Perhaps that's because - really, going back to the civil rights era through the Sixties, Seventies and beyond - the courts were more likely to reflect centrist or left-of-center values in critical cases.

Now look for courts to rise quickly as an issue for the left, though, as Kennedy's swing vote shifts to Cavanaugh's expected conservative stance creating a reliable 5-4 majority, potentially putting in jeopardy what had been considered settled law, such as affirmative action and abortion.

Here in Wisconsin, none of this should look unfamiliar. High-finance partisan efforts to control the judiciary began long ago, and turned the system into just another political prize. Every cycle the left and right lock into a deeply partisan struggle for control, not really any different than campaigns to elect governors or senators or representatives.

THE LOSER? All the rest of us, people who cling to a naive belief that courts ought to be fair referees, unbiased in applying and interpreting the laws without regard for political ideology.

Whether people choose to believe that or are even paying enough attention - they're not - the reality is justice no longer means a fair shake in many states and, perhaps, now at the federal level. Political persuasion has played an increasingly decisive role, and no doubt will continue to do so.

One could argue it's always been that way, and there's some truth to that. Supreme Court justices are appointed by presidents, who usually try to influence the ideological balance on the court. We would argue, however, it's different today and partisanship is not one factor, it has become the only factor. Not long ago Senate confirmation votes usually were lopsided affairs, with judicial nominees from Republican or Democrat presidents garnering strong majorities from both sides of the aisle. Today, votes run almost straight along party lines.

And it's why in President Obama's final year the GOP-controlled Senate refused to even acknowledge the nominee he put forward upon the death of Justice Antonin Scalia, arguing no confirmation vote should take place in an election year. It's also why the same Republican leaders now - with the next election less than four months away - have developed complete amnesia about that let-the-people-have-their-say stand.

WE ARE NOT hopeful anything will change. The center has collapsed and the two political parties are uninterested in rebuilding it.

The left wants the power - through control of political branches and the courts - to tell everybody what to do and enforce the liberal will on the people.

And the right wants the power - through control of political branches and the courts - to tell everybody what to do and enforce the conservative will on the people.

The rest of us - the great majority, in our view - find ourselves abandoned somewhere around the middle with nobody on our side.

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