I don’t know why anyone expected a different result…

6 minute read

October 11, 2018, 12:11 PM

So in case anyone has been living in a bubble lately, Brett Kavanaugh has been confirmed and sworn in as a Supreme Court justice, after several weeks of hearings, where Kavanaugh was accused of sexual assault by several different women.  And then in the end, the Senate voted to confirm him, mostly along party lines.

First of all, I have no reason to think that these women accusing Kavanaugh of some very vile deeds are not telling the truth.  Based on various posts from friends on social media who have spoken about their own experiences, not reporting these things at the time that they happen is fairly common, for any number of reasons.

What surprises me is how outraged some people are that this nomination went through.  My typical response has been, “What did you really expect would happen?”  Think about it.  Donald Trump is a Republican.  The Senate is controlled by Republicans, and they had enough votes to confirm him to the Supreme Court all by themselves, without any Democratic support.  And unlike the Democratic Party, the Republican Party won’t eat their own, so this whole abbreviated FBI investigation and senators’ publicly wavering on whether or not they would vote up or down was all a political stunt designed to appease the constituents at home during an election year.  And everyone fell for their song and dance, while they knew that they would confirm him all along no matter what.  Brett Kavanaugh could have walked up to Dr. Ford and shot her in the head at point-blank range in front of everyone in the hearing room, and the Republicans would have still confirmed him.  The Eleventh Commandment, i.e. “Thou shalt not speak ill of any fellow Republican,” still holds true.  I wish that it had turned out differently, but I also kept my expectations realistic.  I thought it was a bit naive for anyone to really expect that it would have turned out any other way that it did.

At this point, the outrage from the left is directed at Kavanaugh, because he’s the immediate subject.  It’s also far easier to point to him than to admit the real truth, that elections have real consequences.  The Democrats blew it in a major way with their performance in 2016.  Would Hillary Clinton have made a better president than Donald Trump?  Yes, absolutely.  But she alienated enough of her constituency during the campaign to cause a lot of would-be Hillary voters in key states to stay home.  Thus how she may have won the popular vote, but her success was not widespread enough to win electorally.  We are now living with the consequences of the failure of the Democratic Party to win the presidency and more congressional seats in 2016.  So far, those consequences have been two Supreme Court seats and a lot of other policies that do not favor regular people.

Failures to secure majorities in the 2014 midterms before that allowed the Republican-controlled Senate to steal Barack Obama’s third Supreme Court nomination in 2016.  This is why Merrick Garland is not a Supreme Court justice today, and why Trump nominee Neil Gorsuch is instead.  The Republican-controlled Senate leadership opted to sit on their hands and not consider any nominee by then-president Barack Obama after Antonin Scalia died.  They gambled that the next president would be a Republican, and so they held it off until they could get a Republican in office to fill the seat.  Was it a scumbag move?  Yes.  But this is an excellent example of why every election matters.  We might have had a more liberal Supreme Court today had we gotten more Democrats in the Senate in 2014.

That said, it seems like the country is poised to have a major victory on the left in November, and if the Democrats actually pull it out, that might put the brakes on some of the worst of these destructive Republican policies.  Whether the Democrats actually govern like they mean it once they get in, or whether they waste time reaching across the aisle to people who won’t budge an inch and who will shut them completely out whenever they’re in power, is another matter.  But nothing good will happen if people don’t go out and vote.  History has shown us that when turnout is high, Democrats do well, and when turnout is low, Republicans tend to prevail.  Thus it behooves all of us to go out and vote on election day, to get the Congress that we want.

Meanwhile, one meme that I saw going around social media following the confirmation was about the amount of Americans that the senators voting yes represented vs. the number of people who were represented by the “no” voters.  The meme looked like this:

Senate meme in regards to number of senators who voted yes vs. no and how many people they represent

I believe that a little civics and history lesson is in order, and what the purpose of each house is.  Because despite that it posits that the system is broken, it sounds like this meme acknowledges that the Senate worked as designed.

The House of Representatives is intended to be the people’s house.  The representation numbers are determined by population, and representatives are kept on a relatively short leash by having to stand for reelection every two years.  The idea there is to have “one person, one vote” throughout the country, and so, in line with that, the more populous states get more representation than smaller states.  That has become less so in recent years due to a 1929 law that capped the house at 435 members, as it has been more about rearranging the chairs ever since.  Thus if one state has enough population to get another seat, another state has to lose one.  I wrote back in January about a way to fix that, and so I don’t see a need to reiterate it here.

The Senate, on the other hand, was intended to represent the states.  With only two senators per state regardless of population, it was intended to be the counterpoint to the House of Representatives, giving each state, large or small, an equal amount of influence.  In the original Constitution, Senators were selected by the state legislatures.  Thus who you voted for in your state assembly mattered, because they determined who went to Washington, and senators were accountable to them.  That was changed with the 17th Amendment, which provided for the direct election of senators.  I’m on the fence about whether this change was a good thing, but for better or for worse, it’s here to stay.  But in any case, each state has exactly as much influence in the Senate as the next state, whether you’re a big state like California, or a small state like Wyoming.

Of course, the thing that makes Supreme Court nominations so acrimonious is because the stakes are so high.  Supreme Court justices, as is the case with all federal judicial appointees, “shall hold their Offices during good Behavior”, which is generally interpreted to mean a lifetime tenure.  With that in mind, openings on the court occur on an irregular basis, and with people living longer lives, a justice can remain on the bench for decades, shaping US policy for generations.  And no one knows how many appointments a president will get during their term.  Nixon and Reagan had four each.  Gerald Ford had one.  Jimmy Carter had none.  Clinton and both Bushes each had two.  Barack Obama had three (though one was stolen from him).  Trump has so far had two.  It speaks to a need to make Supreme Court nominations more predictable.  I read an article somewhere that suggested putting members of the Supreme Court on staggered 18-year terms.  That seems like a reasonable idea.  Under that sort of arrangement, there would be a nomination to the court every two years, and every president would get two nominations to the court per term.  So a one-term president would get two nominations, and a two-term president would get four.  And the entire court would turn over every 18 years.  In the current court, we have three members who have served longer than twenty years, and there have been periods of eleven and seven years where there was no turnover in Supreme Court justices.  With regular turnover, it lowers the stakes, because we know when each nomination is coming, and we know that each president will get two under most circumstances.  No more retirements timed to ensure a successor from the “correct” side of the aisle.  18 years and you’re out, no matter who is in office.  I imagine that such an arrangement would also make it less desirable for a future senate to steal a seat, as happened with Barack Obama and Merrick Garland, because the next president would get two more picks.  And if a justice were to die or resign before their term was up, the replacement would only serve to complete the previous justice’s unexpired term.  Such a thing would likely require a constitutional amendment to implement, and that would be a high hurdle to clear, but it seems like a reasonable thing to do.

In the meantime, here’s hoping that Trump doesn’t get any more opportunities to fill Supreme Court seats…

Categories: National politics