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The Vicious Entrenchment Circle: Thoughts on a Lifetime with a Republican-Controlled Court

Roundup
tags: SCOTUS, Brett Kavanaugh, Confirmation



Professor Lederman was Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. He is currently Visiting Associate Professor of Law at Georgetown.

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents.  I had just turned eight years old.  I’m now almost 58.  And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats.  That’s right:  By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.  

The appointment of Merrick Garland should have brought an end to that extraordinary streak.  Retaining control of the Court, however, has become an article of Republican faith--hardly surprising when it's become a bulwark of theirs, a virtual background assumption, for fully half a century.  And now, thanks to Mitch McConnell's deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority.  A full century of Republican control is not hard to imagine.  (And how’s this for a (related) factoid?:  In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.) 

It would be one thing, of course, if the Presidency and the Senate had been Republican-dominated for all of my adult life:  In that case, such GOP dominance of the Court over many generations might be alarming (and frustrating), but would hardly be surprising.  But Democratic Presidents have served five terms since 1969, and have won a majority or plurality of the popular vote in seven of the twelve elections in that period--including in six of the past seven elections.  Democrats have also secured a majority of the Senate in more than half of the 25 Congresses since Fortas's resignation—including at least a couple of huge majorities.  Yet nevertheless, the Court has remained, and will continue to remain, in GOP control for decades on end.

This stark contrast between electoral and judicial ratios is especially pronounced today.  When Justice Kavanaugh takes the bench he will solidify a very strong, and unusually cohesive, five-Justice Republican majority, only one member of which (Justice Thomas) was appointed by a Republican President who entered office with a majority or plurality of the popular vote.  Indeed, in that 27-year span, which covers the entire tenure of all of the current Justices, a Republican President has won the popular vote in just one election (2004, of course, which resulted in the Roberts and Alito appointments). 

Moreover, two key Justices in this robust majority, Gorsuch and Kavanaugh, not only were appointed by a President who received almost three million votes fewer than his Democratic opponent--and who continued to have historically low disapproval ratings when he made the appointments--but their nominations were actually rejected by Senators representing strong majorities of the nation’s population.  The Senators who confirmed Gorsuch, for example, represented states in which only 47 percent of Americans lived (based on the 2017 estimates, and splitting the population totals for the nine states (CO, FL, ME, MO, MT, NV, OH, PA, WI) in which the two Senators split their votes).  The gap on Kavanaugh’s vote is even greater:  Using estimated 2018 population figures—and not even counting the millions of Americans in the territories, including Puerto Rico—my rough calculation is that Kavanaugh was confirmed by the votes of Senators representing only 44 percent or so of the nation’s population (once again, splitting equally the population totals for the 13 states (AL, AK, CO, FL, IN, ME, MO, MT, ND, NV, OH, PA, WI) in which the two Senators split their votes)  [I'm counting Sen. Daines as a "yes" vote and Sen. Murkowski as a "no."]  ...

Read entire article at Balkinization (blog)

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