The Democrats’ Constitution Problem
All of that malarky may have played a role in triggering the Democrats, but our own estimate is that their quarrel is something else. It is increasingly evident that the Democrats are chafing under the Constitution itself. Every one of them who holds federal, state, or local office has had to swear to the parchment (the Constitution so requires). They are, though, unhappy about it and want it changed.
Feature the New York Times editorial called “The High Court Brought Low.” It complained that of the five justices picked by Republicans, “four were nominated by presidents who first took office after losing the popular vote.” The senators who announced they’d vote to confirm Judge Kavanaugh, it added, “represent tens of millions fewer Americans than the minority of senators who voted to reject him.”
It’s not just the Times, of course. The Washington Post leg Philip Bump reckons that Justice Kavanaugh has a signal honor — of being the “first justice nominated by someone who lost the popular vote to earn his seat on the bench with support from senators representing less than half of the country while having his nomination opposed by a majority of the country.”
It would be one thing if the Left, the Times in particular, had not spent the last century complaining about elected judges. No one can say that electing judges is unconstitutional; some states have been electing judges for centuries. Yet so frequently has the Times carped about campaign spending on judges and judges expressing political views that its readers could tear their hair out.
Now, when a judge the Left doesn’t like is, in Brett Kavanaugh, seated on the high bench, the complaining starts about how the senators who confirmed him didn’t represent a majority of the voters. “It’s not about Brett Kavanaugh’s alleged behavior. It’s about justices who do not represent the will of the majority,” says a column in the Times by no less a figure than Michael Tomasky.
That, of course, would be like complaining that the justices do not, say, take in home sewing. It’s not their job to take in home sewing. Their job is decide actual cases and controversies. Nor is it the job of the senators to represent the will of the majority. That is the job of the Representative House, the only house whose seats are apportioned by population. The job of the Senators is to represent the states.
That’s the Senate’s very purpose. The Left likes to suggest that the only reason for this was to protect slavery. Yet even the original Constitution anticipated an end to slavery. It still made the equal representation of the states in the Senate the only feature of the parchment that could never be amended absent the consent of the state being denied equal representation.
It is the foundation of our federalist system. Alexander Hamilton, writing, in 77 Federalist, about the president’s power to appoint judges and other officials, alluded to the danger of “an unbecoming pursuit of popularity.” We’ve always loved that phrase. No wonder it is by the states rather than the people that nominees are confirmed. The Supreme Court, which sometimes must overrule the people, is, itself, a check on democracy’s tendency to run away with itself.
Image: ‘Ballots’ by Elliott Banfield. From elliottbanfield.com. Reprinted by permission of the artist.