There have been five presidents who assumed the office after having lost the popular vote. Between them, they nominated 12 justices who ended up serving on the Supreme Court. On Saturday, with President Trump’s nomination of Brett M. Kavanaugh poised to pass the Senate, the number will climb to 13.
Kavanaugh, though, has a distinct honor: He will be 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.
Let’s walk through it.
Obviously, Trump got almost 3 million fewer votes than Hillary Clinton in the 2016 election. Clinton got about 48 percent of the votes cast for president. Trump got about 46 percent.
But that by itself doesn’t tell the whole story. Nearly half of U.S. residents over the age of 18 didn’t vote. Of the entire over-18 population, Trump got only about 25 percent of the possible votes. Clinton got about 26 percent.
Again, Trump is not alone in failing to win the popular vote. President George W. Bush is the other recent president to have that same fate. And, like Trump, Bush was also fairly unpopular when he made his Supreme Court nominations. Trump, according to an NPR-PBS NewsHour-Marist poll released this week, has the approval of only 41 percent of American adults. (That’s about where Bush was in late 2005 when he made his picks.)
But Kavanaugh, Trump’s nominee, is himself not very popular. Only a bit more than a third of the country views him favorably, according to that Marist poll. That’s certainly in part because of the allegations of sexual assault that were leveled against him last month. A majority of women disapprove of him.
What’s more, that same poll found most Americans didn’t want to see him confirmed. More than half, 52 percent, said the Senate should not advance him to the Supreme Court.
Bush’s second pick, Samuel A. Alito Jr., had majority support from the public going into his confirmation vote. (And, by that time, Bush had won an election by prevailing in the popular vote.) But Alito does share that third distinction with Kavanaugh: Both relied on votes from senators representing less than half the country to get to the Supreme Court. For Alito, the votes he received came from senators representing 49.8 percent of the country (assigning half of a state’s population to each of its senator).
Kavanaugh’s confirmation will come with support from senators representing only 44.2 percent of country.
(For the purposes of our count, we included Sens. Steve Daines (R-Mont.) and Lisa Murkowski (R-Alaska), who aren’t planning to cast votes for or against Kavanaugh.)
Kavanaugh will join the Supreme Court despite opposition from senators representing more than half the country, despite more than half the country opposing his nomination, despite being viewed unfavorably by nearly half the country and thanks to a president who is viewed with disapproval by more than half the country and who lost the popular vote.
He will join three other justices who, like him, were appointed by presidents who lost the popular vote.
There are two responses that are sure to ensue from this article and that I will dispatch with here, long past any of those eager to offer them will have stopped reading.
The first is the common complaint that polling is hopelessly flawed and inaccurate, a complaint that is generally offered only about polls that the reader doesn’t like. Anyway, it’s not true.
The second is that America is a republic, don’t you know, and this is how the system was built to work. To which the curt response is that, yes, as someone who writes about politics for a living, I am aware of the Senate and the electoral college. It is worth noting, though, that this structure can at times conflict with the precept that all men are created equal.