Justice Scalia's sudden passing has left the nation with a big political and legal mess on its hands. With the presidential race in full swing, Senate Majority Leader McConnell immediately announced that he would not consider anyone President Obama might nominate. McConnell will pay some political price, if nothing else for the tacky partisanship of it. But blame the game, not the player.

Democrats note that they confirmed Justice Anthony Kennedy in 1988, with just a few months to go in Ronald Reagan's second term. That's true, but 1988 was a long time ago, before the two parties completed their ideological sorting, before asymmetric polarization reshaped the Obama-era Republican Party. On all sides, we increasingly conceive of the Supreme Court in partisan terms. We do so because, on the big issues, that's now the reality.

So we're left with a political and institutional tangle. Neither party is in a position to negotiate political compromises. The recent period of conservative judicial ascendancy ended in an instant. The court is now deadlocked 4-4 on some critical issues. Things will probably stay that way until the next president takes office.

As Supreme Court analysts have already noted, the consequences of such judicial gridlock are breathtaking. In the event of a 4-4 tie, lower court rulings apparently stand. Some lower courts are dominated by Democratic appointees. Others are dominated by Republicans. Sometimes, liberal and conservative circuits have issued mutually contradictory rulings. No one really knows how the randomness and potential legal chaos will play out, on issues ranging from immigration to health care and environmental policy.

This mess is especially frustrating because it was utterly predictable. The sudden death of a major figure such as Justice Scalia might be a surprise when it happens, but we know very well that such events are going to happen from time to time – and they simply shouldn't introduce a random element of crisis into the highest levels of American government. But they do, because our lifetime judicial appointment system – combined with our increasingly dysfunctional politics – holds America hostage to the simple realities of aging, disability, and mortality among the nine human beings who comprise our highest court.

Even if our political process worked better, lifetime Supreme Court appointments make little sense in modern American life. Such appointments create incentives for both parties to find 45-year-olds with minimal paper trails and plausible deniability for their quietly vetted partisan views. Legal giants such as Lawrence Tribe or Richard Posner are simply unviable. They are just too old.

Then there is the equally troubling incentive for justices to linger so they can be replaced by a president of their own party. The common view among veteran Supreme Court watchers was that Justice Douglas held on too long. He was not the only one.

The aging of the judiciary is not an inherently partisan issue. Both parties have a stake in an orderly and effective judicial process. I suspect that presidents and congressional leaders in both parties could use a little less drama, with institutional ground rules that provide a little more help governing effectively in an era of bitter partisanship and divided government.