Since Justice Brett Kavanaugh joined the Supreme Court, Democrats have been on a mission to undermine his legitimacy and, by extension, the legitimacy of the court. A prominent line of attack argues that Kavanaugh was chosen by a president who lost the popular vote and confirmed by senators who represent fewer people than those who opposed him.
The suggestion that democratic principles were somehow violated is ironic given that a disdain for democracy is what really animates the Democrats’ rage about Kavanaugh.
They are angry that democracy produced the president who appointed Kavanaugh and the Senate majority that confirmed him. They fear that the nation’s policies on abortion and other social issues will soon be determined by voters rather than by judges and other elites.
The resentment is palpable in a New York Times editorial that bemoans “the degrading era of [Kavanaugh’s] service on the Supreme Court” and attempts to delegitimize him and other GOP appointees:
“[Of] the five justices picked by Republicans, including Judge Kavanaugh, four were nominated by presidents who first took office after losing the popular vote. And the slim majority of senators [voting for Kavanaugh] represent tens of millions fewer Americans than the minority of senators who voted to reject him.”
Putting aside the Times’ sleight of hand — George W. Bush appointed John Roberts and Samuel Alito to the Supreme Court only after winning the popular vote in 2004 – this argument is really an attack on a central feature of our constitutional democracy.
Under the Great Compromise of 1787, large and small states alike got two senators, and small states got a disproportionate number of electoral votes. No mention was made of the national popular vote, which has as much relevance as the New York Yankees outscoring the Pittsburgh Pirates 55 to 27 while losing the 1960 World Series.
If you nonetheless follow the logic being used against Kavanaugh, every bill signed by President Trump is also of dubious validity given his popular vote loss. Likewise, every bill passed by the Senate on a party-line vote lacks legitimacy, since the 51 GOP senators represent too few Americans whether they’re voting for Kavanaugh or for legislation. Talk about a rejection of democratic outcomes.
Progressives would likely argue that they dislike just the details of our constitutional democracy. Yet it’s hard to imagine that they would have been less outraged by Justice Kavanaugh’s confirmation if Trump had won the popular vote.
That tells us they are angry at the electoral college only because they cannot accept the democratic outcome it produced: a president elected by Americans they consider deplorable, using his authority to shift the Supreme Court in a direction they abhor.
Senate Democrats’ preposterous argument this summer that a president cannot legitimately appoint a Supreme Court Justice while under investigation is telling because it’s as close as they dare come to saying what they really feel: Trump is too despicable to be allowed to pick a consequential Justice.
Similarly, Kavanaugh’s confirmation would have provoked no less outrage if the senators voting for it had represented bigger states. What the Left really resents is that a party complicit in Trump’s imagined evil controls the Senate and can have its way.
That’s why Democrats were outraged when the Republican majority simply did what Senate majorities usually do: control the hearing process for the nominee and the timing of the confirmation vote. The former includes deciding whether a nominee gets a hearing — it’s by no means assured — yet Democrats were also outraged when in 2016 the majority decided not to hold a hearing for Judge Merrick Garland.
Democrats direct their anger at Senate Republicans but their real problem is with the voters who gave the GOP control of the Senate.
Unsurprisingly, Kavanaugh’s confirmation has done nothing to convince the Left that it should accept democratic outcomes. Efforts to brand Justice Kavanaugh as an illegitimate Justice are already underway.
“[E]very decision of political significance rendered by a 5-to-4 majority that includes a Justice Kavanaugh will, at the very least, appear to be the product of bias and vengeance,” says the Times editorial, hoping to make it so.
The goal is to delegitimize the Supreme Court’s decisions to come because, for the first time in 80 years, there is a genuine conservative majority on the Court. “The real source of Democratic grief is less what the new Roberts majority might do than what it won’t” notes the Wall Street Journal.
What the Court won’t do is allow the policy preferences of the Justices and the elites that influence them to trump the text of the Constitution and Americans’ democratically determined policy choices.
The Left is angry that it will now have to rely on the democratic process to advance or protect its agenda on a host of social issues, including gay marriage, guns, immigration, the death penalty, and especially abortion. If Roe v. Wade is overturned or weakened, abortion policy will once again be determined by the people. Democrats have been clear that is anathema to them.
The desperate measures to which Kavanaugh’s opponents were willing to go signals that something has changed. Progressives realize that, after decades of judicial rule on the nation’s most important social questions, democracy is effectively pushing back through the judicial appointments of GOP presidents who ran against legislating from the bench.
Perhaps that is what Kavanaugh had in mind when he told Democrat senators, “You sowed the wind for decades to come.”
Democrats will reap what they sowed as they are forced to live with the results of democracy, not just in the White House and Senate, but also in the Supreme Court.
Curt Levey, a constitutional law attorney and president of the Committee for Justice, has been involved in judicial confirmation battles since 2005.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.