Since last fall, 2018, both the executive and judicial branches of our federal government represent a minority of those who cast votes and a minority of the U.S. population. Let that sink in. The operatives now in control of the Republican Party understand this, and they understand the use of the anti-democratic machinery that offers them minority control. (We Believe We Vote, the Redoubters, and Matt Shea with his 51st State advocacy are all local manifestations I plan to cover in later posts.)
How can this be? Let’s tally it up.
Mr. Trump, like George W. Bush, was elected by a minority of voters. Trump fell short of a popular majority by 2.9 million votes, Bush by 544 thousand. (In 2000, Bush won the Electoral College by 5 votes [271-266] because a 5-4 majority of the Supreme Court effectively awarded Florida’s 25 electoral votes to Bush on a series of technicalities. Every one of that five Justice majority was nominated by a Republican president.*) The last time before 2000 we had a President in office who lost the popular vote was in 1888.
The minority effect cascades into the Judicial Branch: Four of the five of the current conservative majority on the Supreme Court were nominated by GW Bush and D. Trump, the two minority Presidents**: All four, Roberts, Alito, Gorsuch, and Kavanaugh, were put forward by the hyper-conservative, Koch-donoe-group-backed, Powell Memorandum-inspired Federalist Society.
Supreme Court nominees must receive Senate confirmation, a requirement set forth in the U.S. Constitution. Article II, Section 2, “with the Advice and Consent of the Senate.” Each State elects two Senators regardless of the state’s population or number of voters. In our current system Republican Senators are elected disproportionately from States with lesser populations and fewer voters, giving those voters an outsize influence.
Supreme Court Justices Neil Gorsuch and Brett Kananaugh hold records for gaining confirmation as what we might call “minority Justices.” The cumulative votes that put in office the 45 Senators who voted against the Gorsuch nomination exceed the cumulative votes that put in office the 54 Senators who voted for Gorsuch by 20 million (77 million to 57 million).*** The numbers for Kavanaugh must be worse, since he was approved by fewer Senators of the same Republican voting block, 50-48. These numbers are unprecedented. The nearest contender is Clarence Thomas (1991), voted in by 52 Senators whose underlying voter representation was only 3 million less than that of the Senators opposing him. In contrast, Elena Kagan (2010, Obama-nominated) had a 42 million vote representative excess.
Finally, consider this: “… when Senate Republicans blocked Chief Judge Merrick Garland’s nomination [under President Obama] to the Supreme Court, the 46 Senate Democrats represented 20 million more people than the 54 Republicans [Senators seated at the time].” In spite of that imbalance, Mitch McConnell (representing the 4.5 million person population of the state of Kentucky [population, not voter numbers]) was able to stiff-arm the Garland nomination over the objections of Dianne Feinstein (representing the 39.5 million person population of California), among others.
Republicans may thumb their noses and say, “Well, those are the rules,” but those rules are not sacred writ. They simply represent the best compromises that could be achieved among representatives of slave and free states (the Three-fifths Compromise) and small and large states (The Connecticut Compromise) when the Constitution was cobbled together in the summer of 1787.
This striking minority takeover of the Judicial Branch of our government rolls on in spite of the new Democratic majority in the House. A minority President and Senators representing a minority of the population and a minority of voters press forward to fill lower judgeships (around 100 of them) with Federalist Society approved candidates, judgeships McConnell and company refused to fill under Obama
Since Reagan (1980-1988) appointments to federal judgeships including the Supreme Court have become ever more contentious in parallel with the Republican endorsement of Federalist Society vetted nominees (and concurrent denigration of American Bar Association vetting as “too liberal”)
The federal judiciary has been dragged rightward over the last thirty years (most dramatically in the last two years) by maneuvers of Presidents and Senators representing of a minority of voters (and a minority of the population). They are empowered by the compromises that shaped our Constitution, compromises made necessary by circumstances now long past. We live with the anti-democratic result.
Keep to the high ground,
*Rehnquist (Nixon, Reagan for Chief Justice), O’Connor (Reagan), Scalia (Reagan), Kennedy (Reagan), and Thomas (GHW Bush)
**To be strictly fair, GW Bush won the popular vote in 2004. So, technically, Samuel Alito was nominated in 2005 by a president who, at that time, had been elected by a majority popular vote.
***Read Will the Supreme Court Still “Seldom Stray Very Far”?: Regime Politics in a Polarized America. This is no small feat of calculation. The whole article from the Chicago-Kent Law Review is well worth a look.
P.S. The Clarence Thomas confirmation final floor vote was: 41 Republicans and 11 Democrats to confirm with 46 Democrats and two Republicans to reject the nomination. Had those eleven Democrats had means to see into the hyper-partisan future (Gingrich, McConnell, two minority-elected Republican Presidents) perhaps they would have cast against..