Since it is elected in less populous states, the majority of Republican senators represent fewer voters than a minority of Democratic senators.
Judge Brett Kavanaugh‘s confirmation process, which has been charged with sexual assault and is suspected of lying under oath, has been one of the most controversial in American history. While a narrow majority of Republican senators (and a Democrat) is about to confirm it in the Supreme Court, the democratic deficit of the process has been underlined by many journalists.
An unrepresentative vote
In the Washington Post, Philip Bump calculated that the majority of senators who would vote for Kavanaugh represented only about 44% of the US population. Voters in each US state elect two senators to represent them. But a state of 39 million people (like California) is represented by the same number of senators as Wyoming, which has 544,000 inhabitants. As more Republican senators are elected in sparsely populated states, their vote represents fewer voters.
On top of that, Judge Kavanaugh was nominated by President Donald Trump, who was elected by the constituency with about 3 million fewer votes than his opponent, Hillary Clinton.
“It reminds us how much the American system often gets away from the idea that the majority vote is decisive,” Bump wrote. A president elected by a minority of the country has appointed a judge to the Supreme Court that could be approved by senators who represent a minority of the country.
In addition to the chaos of Kavanaugh’s hearing, during which he accused the Clintons of orchestrating revenge against him, the lack of democratic representativeness of his confirmation may weaken the legitimacy of the Supreme Court.
Bypass the popular vote
In the New York Times, Michael Tomasky recalls that Neil Gorsuch, the first judge Trump appointed to the Supreme Court was the first in American history to be appointed by a president who had lost the popular vote and confirmed by senators elected with fewer votes (54 million) than senators opposed to its confirmation (73 million).
Kavanaugh would be the second judge in this case. Despite this lack of representativeness, they are both appointed to the Supreme Court for life. Unlike the conservative judges of the Court, the four progressives were all confirmed with more comfortable majorities, at least 63 votes, instead of 54 for Gorsuch and 51 for Kavanaugh.
“This is a severe legitimacy crisis for the Supreme Court,” Tomasky writes. A majority of five judges will be able to radically rewrite the laws of our nation and four of them were narrowly approved by senators representing a minority of voters. ”
Add to this the fact that the Republicans had refused to launch the confirmation process of Merrick Garland, the judge appointed by Barack Obama in March 2016, it is likely that elected and Democratic voters have a hard time accepting the validity of judgments of the Court.