Democrats just suffered yet another crushing loss. And this one comes with potentially long-lasting implications: a clear conservative majority on the Supreme Court that cements Republican domination of all levers of power in U.S. government.
And, perhaps naturally, that has led to some rationalizing.
Brett M. Kavanaugh’s confirmation has brought about a new round of complaints among Democrats about how allegedly unfair and even undemocratic our system of government has become. Previously, this was mostly about gerrymandering in the House and the electoral college, which in 2016 delivered the GOP its second popular-vote-losing president in 16 years. Now, it’s also aimed at the Senate, where small GOP-dominated states are increasingly passing things with the backing of a minority of Americans behind them. Still others are even talking about Democrats, if and when they retake power, packing the Supreme Court with additional justices to tilt it to the left.
That’s basically all the major levers of power in U.S. government that Democrats feel are unfair to them in some way, and must be rectified.
With the exception of a very gradual, state-by-state rollback of gerrymandering, none of these changes is likely to come soon, if ever. And it’s worth noting that they aren’t being pushed by many Democrats in Congress. But few things are as powerful in politics as a sense of victimhood. And circumstances have conspired to create a palpable, growing sense among the Democratic base that the system is rigged against them.
We can say a few things about this. The first is that it’s 100 percent true that Democrats are increasingly on the short end of how the U.S. government is set up — and demonstrably so. The second is that the government has been set up this way for many, many years, and these trends didn’t start this decade. And the third is that, in many ways, these Democrats' complaints represent an indictment of their party.
My colleague Philip Bump raised the unrepresentativeness of the Senate in a great piece this weekend. He noted that Kavanaugh was an unpopular nominee confirmed by senators representing less than half of the total U.S. population (not to mention that he was appointed by a president who lost the popular vote). The Senate these days can reach a majority, in fact, with the votes of senators representing 17 percent of the population.
GovTrack has also done some good work noting that the Senate, as with Kavanaugh, is indeed increasingly relying upon the votes of senators who represent a minority of the country.
Some have labeled it as “undemocratic” that a minority could so rule the country. But it’s also true that this is how our government was set up. The bicameral legislature was a compromise forged in the Constitution. And even at the time, there were vast differences in the populations of states, with Virginia having 12 times as many people as Delaware. Both states were given two senators.
Today the gap between the biggest state and smallest state is closer to 70 times — California vs. Wyoming — but that difference is actually smaller than it has been for most of the past 150 years.
Here’s how that has looked over time, courtesy of Will Jordan:
So two things are true: The possibility that a minority could control the country via the Senate was built into the Constitution, and also that this is happening with more regularity. That’s both because of how the population has shifted and how polarized Americans have become. If bills are passing with fewer votes, and smaller states that are increasingly dominated by one party are forming a majority of votes in the Senate, it means that fewer constituents will be behind those votes.
But this — and here’s the key point — doesn’t happen in a vacuum. These have been the ground rules since the late 1700s, and the map has been trending in this direction for decades and decades. Republicans have positioned themselves politically to take advantage of this; Democrats have done a decidedly poorer job.
It’s similar to what happened with redistricting. Republicans recognized the huge stakes in state legislatures, they won big there in the late 2000s, and now they have a historical amount of control over state governments and a congressional map that is more difficult for Democrats to penetrate.
It’s also similar to what happened with the electoral college. Hillary Clinton won the popular vote by nearly 3 million votes, but she neglected the crucial states at the end and wound up losing erstwhile blue states Michigan, Pennsylvania and Wisconsin.
That’s arguably what happened with the Supreme Court. Democrats nuked the filibuster for non-Supreme Court judicial nominees in 2013, and then they filibustered Neil M. Gorsuch in 2017, leading Republicans to nuke that rule, too. That meant Kavanaugh needed just 50 votes, which is what he got. Democrats will argue that the GOP would have pushed Kavanaugh through no matter what. That may be, but they sure made it easier.
It’s fair to raise concerns about how unfair the U.S. system of government is. No system is perfect. Our founders were flawed people who included the three-fifths compromise as part of this system of government. And there is a method to change this setup — albeit an extremely difficult one.
But at some point, Democrats may need to ask themselves why they are consistently on the short end of that setup. Is it because the system is inherently biased against a left-leaning political party? Or is it because they have been outmaneuvered at nearly every turn and failed to make sure they turned what has regularly been a majority of the votes for their side into actual political power?
It’s easy and cathartic to blame a rigged system. It’s probably much more fruitful to figure out why the other side has been able to work that system in a way you haven’t.