If Brett Kavanaugh is confirmed, it will be only the second time in U.S. history that an Associate Justice nominated by a president who lost the popular vote will be confirmed by senators representing less than a majority of the country's population:
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.
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.
Kavanaugh is the second nominated and confirmed by a minority, opposed by the majority. Who was the other? Neil Gorsuch:
And consider this further point. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.
They are Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.
But I implore you to take a moment to be angry about all this, too. This is a severe legitimacy crisis for the Supreme Court.
The court, as Professor McMahon notes, was intended never to stray far from the mainstream of American political life. The fact that justices represented that mainstream and were normally confirmed by lopsided votes gave the court’s decisions their legitimacy. It’s also why past chief justices worked to avoid 5-4 decisions on controversial matters: They wanted Americans to see that the court was unified when it laid down a major new precedent.
But now, in an age of 5-4 partisan decisions, we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.
Remember, the Republican Party doesn't care about institutions, or what's good for the country as a whole. They care about power. And they are not giving it up without a fight.