by Bill Nowacki

One need look no further than King Solomon to know the answer to the current Republican Supreme Court Justice conundrum.

With the Left yelling, “Bring it to a vote!” and the Right snarling and foot-dragging, both might as well be shouting, “Yes! Cut the baby in half! If I can’t have him, then she can’t!” We’d rather sacrifice our third branch of government than allow it to survive to fulfill its intended and useful purpose.

The 113th Congress enacted and passed over 950 laws and resolutions. And though many of the resolutions were ceremonial, the laws were not – ultimately they’ll have to be enforced and adjudicated; some number will be either sufficiently ambiguous or unpopular as to require subsequent vetting thus they’ll wind their way through the appeals courts, led by lawyers who have little better to do. This is key.

Any child of the 70s remembers the Schoolhouse Rock cartoon civics lesson How a Bill becomes a Law. Having viewed it countless Saturday mornings, we became intimately familiar with the deliberative, negotiated process intended to ensure the general outline of the idea is adequately memorialized and codified in the bill-that-will-become-a-law. (What was less obvious to a 12-year old at the time was that the process also ensures horses are traded. More, that human nature, horse trading, group dynamics within committees, and a multi-stage process carried out over weeks and months guarantee flaws and imperfections in the final product.)

In the closing frames of the cartoon, we see the protagonist – a caricature of a bill that-became-a-law – triumphantly strolling past a parade of Marines as confetti rains down, acknowledging and celebrating that he is one of the few to have survived the process.

This is where the cartoon stops.

But what happens next? The cartoon episode I most recall focused on a bill proclaiming school buses had to stop at railroad crossings. Whether real or not, consider the post parade process: county and local law enforcement need to be briefed as do school districts, bus companies and their drivers, and state licensing boards and testing services. Informed and armed, all can begin the process of advisory, enforcement, and compliance.

With over 3,000 counties in the United States and more than 450,000 school buses – the shear logistics of informing all relevant parties about a new law such as this – its interpretation, ramification, and enforcement – is daunting. Think of the numbers. For simple argument, assume each county has 20 municipalities, and each municipality has 5 relevant agents. . .and each of America’s 13,500 school districts has 1 safety and compliance officer, as does each bus company serving the district. . dissemination of information pertaining to the law requires 750,000 lawmen, administrators, and drivers be briefed.

Flaws and imperfections. Improper interpretation. Inadequate indication. How hard is it to imagine a downstream challenge by a ticketed bus company questioning what the “meaning of [stop] is?”

Three seconds? Five? Within the judgment of the driver? By whose watch? the driver’s? the cop’s? What kind of watch? Digital? or is a sweep second-hand acceptable? How do we protect against operator error? should two police timestamps be required to fault a driver? Three, with the requirement that at least 2 have to match?

Most assuredly, there will be trials and appeals.

The process invites them It appears that poor quality control is baked into the legislative process. In fact, it seems to use a when-the-rubber-meets-the-road method for quality assurance. . .hasten a poorly manufactured policy to market, then count on the citizenry and courts to identify faults and defects.Imagine if Samsung employed the same standard – consciously abdicating engineering feedback and control to 250,000 employees, 30 million Galaxy handset owners, and the network of Retailers and intermediaries standing between them.

Private sector companies big and small make it their business to imagine and anticipate every outcome and nuance. A fundamental question to the design process is, what can go wrong? In the world of smart phones, ambiguity is kryptonite, therefore engineers and marketers discipline themselves to examine every push-button and slider from every perspective knowing that a problem resolved upstream saves millions of dollars and billions of calories downstream.

(When bills are thousands of pages long and deliberated by committee members and staffers for whom quality control is only a small part of their busy days, it’s likely that they neither read nor fully know what’s in legislation prior to its passage. This seems hardly the Samsung QC model.)

As the US chooses-up sides in the Supremes debate, one begins to wonder if we ought not put the entire thing on ice and think boldly and creatively about infusing the manufacturing process – drafting of the legislation and its subsequent dissemination – with strict quality control. Could we not look to McDonald’s in order to understand and adopt its communications and training policy and apparatus that ensures the least of its 1.2 million employees understands a new recipe or protocol as completely as its greatest? Would not our energies be better spent upstream because there’s simply a limit the number of customer complaints 9 Smart people can resolve in the Call Center.

As it stands, we have a divided court. But is this bad? An equally divided court will inevitably find itself at impasses unable to decide – cases will get kicked back to lesser courts. Dockets will become swamped. Fewer new cases will be heard; delays will mount.

The logjam will result in plaintiffs and defendants running out of time, bile, or money; they’ll thus abandon their positions and either walk-away, capitulate, or settle much as we were taught to do as kids (before being indoctrinated by government PSAs masquerading as Saturday fun).

Ultimately, eight justices will uphold decisions that are conspicuously in harmony with the Constitution. To wit: in the last session, the Supreme Court justices largely concurred in Equal Employment Opportunity Commission v Abercrombie & Fitch Stores (8-1), Holt v Hobbs (9-0), and Reed v. Town of Gilbert, Arizona (9-0); the “right” answer was evident to all. Other decisions that would bend in favor of whichever party was in power the last time someone died will become ensnarled.

As products of television, we’re quick to pound our fist on the table and declare, “I want justice.” But the big, important stuff has been decided and sufficiently argued that no ambiguity remains: don’t kill, don’t steal, don’t lie, etc. We’re so far down the maturity curve that we’re beginning to argue nitpicky things: in Glossip v Gross, the plaintiffs – all of them murders – argued that the sedative midazolam can lead to some material discomfort during execution. Note: the question in this case wasn’t whether society should or shouldn’t execute a person guilty of murder, rather the level of comfort the condemned should enjoy in passing from this life to the next. It will do our country a measure of good to be unable to occupy itself with splitting hairs.

A permanent four-four split might be the elixir for our fractured culture. Rather than perpetuate the unproductive cycle of political winners and losers, we can encourage problem solving through dialog among principal participants: Sir, you’ve been convicted of murder by a jury of your peers and have been sentenced to death. Which method would you like us to use? I have every confidence the convicted person would eventually, heart-breakingly elect one. And without having to choose sides, we as Americans can take one small step away from the brink.

The Supreme court is our most precious of blessings. Delicate, beautiful, and with the ability to profoundly effect our nation, its fate should not be given to the impulses of anguish.

Those who love our republic would beg the King do nothing.