Why high-court confirmation fights aren’t over

has to do with the fact that law is not anything like science — and that what the Supreme Court does has little to do with the dispassionate application of clear laws to clear facts.

This should hardly be surprising. The court decides about only 80 cases each year and chooses those from 7,000 to 8,000 lowercourt cases that parties want to appeal to the court. Unsurprisingly, cases are appealed where the law is unclear, where it seems the lower-court decision could have gone the other way. Parties also appeal cases when different circuits — the country is divided into 13 courts of appeals — have reached different decisions, which is most likely to happen when, again, the law is unclear. The Supreme Court chooses the most difficult among this vast array of lower-court cases to decide.

Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasilegislative power: They have to decide what should be done based on their own moral and political values, since existing legal standards conflict, or are indeterminate, or are silent on the problems they confront. The Supreme Court, as the final court of appeal in our system, is the super-legislature of last resort. And that is why Republicans blocked Garland’s nomination and why Trump chose Gorsuch. Republicans expected Garland to vote against their objectives on the super-legislature. Trump expects Gorsuch to vote with the Republicans.

None of this is controversial among insiders. Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit - nominated by President Ronald Reagan — made these points less than a decade ago in his book “How Judges Think,” while Benjamin Cardozo — nominated to the Supreme Court by President Herbert Hoover — delivered the same lessons in “The Nature of the Judicial Process” nearly a century ago. All jurists know that good judging demands not simply technocratic expertise but moral and political judgment of the kind exercised by a conscientious legislator.

Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial. As a superlegislature, it has limited jurisdiction, depending on what cases are brought before it, but those cases are important enough. Just as no one would expect Republicans or Democrats to assent to appointments to the Senate without regard to political ideology, it is naive to expect anything similar in the case of nominations to the Supreme Court.

And that is why Senate Majority Leader Mitch McConnell, R-Ky., would not let Garland be voted on last year and why Trump nominated Gorsuch. Perhaps it is time to tell the truth to the public so that we might have honest hearings about the moral and political views of the nominees. Brian Leiter is a professor at the University of Chicago Law School.