The Washington PostDemocracy Dies in Darkness

The minority-majority that may propel Kavanaugh to the bench

Senators representing no more than 44 percent of the country may elevate him to the court.

Republican members of the Senate Judiciary Committee listen to Democratic senators speak during a committee meeting on Sept. 28. (Chip Somodevilla/Getty Images)

To President Trump’s chagrin, more people voted for Hillary Clinton in the 2016 election than voted for him. Even once you take out all of the votes cast fraudulently (perhaps somewhere in the double digits), Clinton got nearly 3 million more votes. And yet she isn’t president, because the system doesn’t run on the popular vote.

There’s some consolation to be found for Trump, though. If you look at the population of each of the states he won, his victory encompassed states where about 184 million Americans live, about 57 percent of the country.

The obvious caveat is that not everyone in each of those states supported Trump or Clinton. Plenty of people in California supported Trump, and plenty of people in Texas supported Clinton. There were a lot more people in Trump states that voted for Clinton than vice versa, about 10.2 million more — because Trump won more states.

If you’re talking about Senate representation, things get a little bit more nuanced.

In the Senate, the imbalance is flipped. Republicans hold just over half the seats but — if you divvy up a state’s population between the two senators — represent about 44 percent of the country. Independents hold 2 percent of the seats but represent about 0.3 percent of the country.

This brings us to the seemingly imminent vote on Judge Brett Kavanaugh’s nomination to the Supreme Court. As of 1 p.m. Friday, only four senators haven’t taken a position on his nomination. (Note: This may change, depending in particular on a certain senator from Arizona.) But it doesn’t really matter, because the pattern is clear.

Even if all four of those senators vote for Kavanaugh, he’ll be confirmed by senators representing no more than 44.4 percent of the country.

This is the nature of the Senate, of course. The Senate represents states, not people. It’s just that more than 80 percent of the country lives in half of the states, meaning that the other half, if they all voted the same way, could prevent the Senate from taking any action on the behalf of about 16 percent of the population.

That imbalance has been the case for a long time. In 1820, the more-populous half of the states made up 85 percent of the population. In 1920, it was 82 percent. (Now it’s about 84 percent.)

It’s a reminder, though, of how the American system often deviates from the idea that majority vote rules. A president elected by less than a majority of the country nominated a Supreme Court justice who may be approved by senators representing less than a majority of the country. And that’s how it works.

America is, quite literally, republican.