The ‘Undemocratic’ Senate Has Not Skewed the Supreme Court to the Right

By Charles C. W. Cooke

Monday, July 16, 2018

Distilling progressivism’s growing penchant for the Jacobin into the whiniest form imaginable, the Center for American Progress’s Ian Millhiser took to Twitter last week to demand that the Senate be abolished. This jarring request was made in concert with a piece of his at ThinkProgress, in which Millhiser claimed that there is something unfair about the Senate’s exercising its enumerated “Advice and Consent” power. “America’s House of Lords is about to decide the future of the Supreme Court”! Millhiser griped. “This sham democracy has profound implications for the upcoming battle over Supreme Court nominee Brett Kavanaugh.”

The Senate, it seems, is institutio non grata.

I have written before against the fashionable argument that the upper chamber is “undemocratic,” a conceit that relies for its heft upon a vision of the federal government that is incompatible with the Constitution as written. Given the federal order that undergirds the United States, one can view the Senate as an enemy of the demos only if one views that federal government as the major — or even sole — player within the game. Once one realizes that it is not — and, in fact, that Washington, D.C., exists to play a small, though vital, role in a larger drama — one realizes in concert that “localist” is a better description for it. Provided that federal power remains in check, the Senate prevents no state from enacting whichever policies it wishes to within its border; it merely prevents a handful of states from riding roughshod over their smaller counterparts on those few questions that are inherently national. Thus was the republic deliberately arranged.

Nevertheless, I suspect that there is little to be gained by re-rehearsing these arguments, and so I shall instead turn my attention to the specific claim that Millhiser and others have recently made: To wit, that the Senate’s role within the judicial-confirmation process has led to “minority rule.” The best way of testing this proposition, I’d venture, is to examine what would have happened to America’s federal judiciary if the Senate did not exist, and to compare that outcome to the one that actually obtains. Or, put another way, we can test Millhiser’s complaint by asking, “If the Founders had awarded the ‘Advice and Consent’ power to the House of Representatives, what would be different about the Supreme Court?”

The answer, curiously enough, is . . . nothing. The Republican party had a majority in the House of Representatives from 1995 to 2007, and has had one from 2011 to the day on which this was written. The Democratic party had a majority in the House of Representatives from 1955 to 1995, and from 2007 to 2011. The eight active justices on the Supreme Court were added in 1991, 1993, 1994, 2005, 2006, 2009, 2010, and 2017. If Judge Kavanaugh is added to their ranks, he will take his position in 2018. In every one of these cases except for one, the nominating president was of the same party as both the Senate and House majorities. In the exceptional case, the nomination of Clarence Thomas, the president was a Republican and both the House and Senate were run by Democrats. During the same period, only one nominee (Merrick Garland) was rejected, and that was during a year in which Republicans controlled the House as well as the Senate. In not a single one of these instances would transposing the “Advice and Consent” power from the Senate over to the House have yielded a change to the outcome. (By limiting my scope to the current justices, I am arguably underplaying the point: Since 1932, the only nominations that have come about while the House and Senate were controlled by different parties were Antonin Scalia’s and Sandra Day O’Connor’s. Both were confirmed unanimously.)

Writing this down, I can almost hear the cascading series of “but . . . !” excuses to which we are treated ad nauseam whenever a Democrat loses an election. “But the popular vote!” “But gerrymandering!” I should make it clear upfront that I consider the notion of a “popular vote” for the House of Representatives to be an inherently silly one, which if taken to its logical conclusion ends up morphing into an argument against the right of free people to choose their preferred politicians. Nevertheless, popular-votism is trendy among the sort of people who tweet “Abolish SCOTUS” when a judge they don’t like is nominated or “Abolish the Senate” when the upper chamber stands in their way, and in consequence it is likely to be raised as a fallback excuse. Arguendo, then, let’s play the game and amend the question so that it reads:

“If the Founders had awarded the ‘Advice and Consent’ power to the House of Representatives and insisted that the majority party therein must have won the ‘popular vote,’ what would have changed on the Supreme Court?”

Again, the answer is: Nothing.

The Republicans won the “popular vote” for the House in 2016, 2014, 2010, 2004, 2002, 2000, 1998, and 1994. The Democrats won the “popular vote” for the House in 1992, 1996, 2006, 2008, and 2012. Clarence Thomas was added in 1991, while the Democrats controlled the Senate and ran a popular-vote-endorsed House. Ruth Bader Ginsburg was added in 1993, and Stephen Breyer in 1994, while the Democrats controlled the Senate and ran a popular-vote-endorsed House. John Roberts and Samuel Alito were added in 2005 and 2006, while the Republicans controlled the Senate and ran a popular-vote-endorsed House. Elena Kagan and Sonia Sotomayor were added in 2009 and 2010, while the Democrats controlled the Senate and ran a popular-vote-endorsed House. Merrick Garland was rejected in 2016, while the Republicans controlled the Senate and ran a popular-vote-endorsed House. Neil Gorsuch was added in 2017, while the Republicans controlled the Senate and ran a popular-vote-endorsed House. If Brett Kavanaugh is added later this year, he will be confirmed while the Republicans control the Senate and run a popular-vote-endorsed House. To understand how tendentious is Millhiser’s claim, consider that in only one case in the last 27 years would replacing America’s Constitution with a popular-vote-driven, unicameral, parliamentary system have made any difference to the composition of the Supreme Court!

Amusingly enough, the most likely consequence of a more “democratic” confirmation process would be a more Republican-appointed set of lower courts. Had the House been the confirming body over the last quarter-century, George W. Bush would have enjoyed an extra year and a half with a complaisant set of advisers and consenters, and Barack Obama would have had six, rather than two, years with the opposing party tasked with confirming his judges.

Perhaps Millhiser is suggesting that conservatives have been cheated.