The Supreme Court and Majority Rule

There's been a lot of discussion about Trump's Supreee Court nominee, Kavanaugh.  This has included references to the Senate GOP's refusal to consider Obama's nominee in 2016 - claiming it was better to wait to see the results of the 2016 election, and then decide if the voters wanted a nominee from Obama.  I don't want to discuss the pros and cons of Kavanaugh here.  I will just discuss how the handling of these nominees reflects ignoring the will of the majority.

First, let's be clear.  When the Supreme Court vacancy occurred under Obama, it was further from the 2016 election than the current opening under Trump.  We should also note that in 2016, Obama was not running for re-election.  Therefore, regardless of who won the presidential election, it would not so clearly indicate that the voters did or did not want an Obama nominee.

The Senate GOP demanded that no nominee be given any consideration until after the election.  OK, so what did the election tell them about what the voters wanted?  It told them more voters wanted Clinton than wanted Trump.  Today, the official vote totals show Clinton received about 3 million more votes than Trump did.  To be perfectly factual, I'll note that in the weeks immediately after the election not all the votes had been counted - so, the official vote totals may have only shown Clinton leading by 500,000 or 1 million votes.  (I'm not going to go back to determine exactly how many votes on which date.  The point is it was known Clinto lead in the popular vote.)  It was also known after the election that the GOP lost two seats in Senate elections.  Also, if one adds up all the votes for the 435 House districts, you'll find the GOP did get somewhat more votes than Democrats - but the GOP nationwide House candidate vote count was less than 50%.  These election results hardly argue that the voters wanted a Republican to pick the next Supreme Court Justice.  [Presumably, the election results would have been less favorable to the GOP if not for "voter suppression" and related tricks.]

Now, if the US put the winner of a presidential election in the White House the day after Election Day, then the Senate may not have had an opportunity to confirm Obama's nominee after they saw the election results.  However, there's two and a half months in between Election Day and Inauguration Day.  The Senate had plenty of time to see the election results and confirm Obama's nominee.

Suppose, for the sake of argument, that the Senate leadership felt the election results weren't quite clear enough indication of what voters wanted.  Well, the Senate has had more opportunities to get an idea what voters want.  There have been a number of special elections to fill vacancies in Congress.  Democrats have won some of these election which were previously held by Republicans.  Republicans have won some of these elections which are traditionally won by the GOP - but, generally, the Democratic candidates got a larger percentage of the vote than Democrats have gotten in the past.  To the extent that elections tell us whether voters want a Democrat or a Republican to choose Supreme Court Justices, there is reason to think more voters are leaning toward Democrats.

There are also public opinion polls which indicate that significantly less than 50% of Americans approve of Trump. That might also suggest voters don't want Trump to select the next Justice.

Well, if this isn't enough to convince the Senate GOP, they can simply wait to see the 2018 election results.

And yet GOP Senators seem determined not to wait for the 2018 election and to confirm Trump's nominee.

The important point here is NOT which party is ignoring the will of the majority in this particular case.  The crucial issue is that the Constitution, the laws and our government permit the will of the majority to be ignored in a case like this.

This is how our country has operated for centuries.  Those who take this past for granted view the current situation as a matter to be dealt with through this rigged system.  Liberals will ask their Senators to vote against confirmation.  They will see if they can influence a less-conservative GOP Senator.  They'll talk about trying to get more liberal candidates elected in the future elections.  Perhaps, they'll think of some other avenue within the rigged system.  But you won't hear much talk about demostrations, boycotts, or any other options which aren't part of the rigged system.  As long as we "think inside the box," the system which is designed to limit the influence of the majority will continue to operate for the privileged minority.

Whatever you do within this rigged system, if we don't organize outside the rigged system, they will see that we're only playing by their crooked rules.  And that means they won't be worried.  They won't feel at risk.  And that means they won't feel a need to make real changes.  We have to show them that we're will to consider alternatives that pass them by.  Then, they can either make the needed changes, or we can move forward without them.