In Defying the Odds, we discuss how the issue of Supreme Court nominations affected the 2016 race. The Senate narrowly confirmed Kavanaugh, who immediately took the oath.
A post-Kavanaugh conservative majority could be vulnerable to a political backlash for a less-appreciated reason. Both Kavanaugh, if confirmed, and Neil M. Gorsuch, Trump’s first appointee to the court, can be considered “minority” justices — judges who were nominated to the Supreme Court by a president who lost the popular vote and would be confirmed by senators representing a minority of Americans.
Of course, the framers designed the court to be “counter-majoritarian,” meaning that it often sides with individuals or principles over popular majorities. However, the court derives some democratic legitimacy from each justice being nominated by an elected president and confirmed by a majority of elected senators. Just this week White House press secretary Sarah Huckabee Sanders accused Democrats of “trying to undercut the voice of the American people when they elected Donald Trump.”
But the breadth of support that Kavanaugh and Gorsuch enjoy is uniquely narrow. First, Trump famously lost the popular vote. In addition, because each state gets two votes in the Senate, regardless of population, the confirmation process overweighs the views of voters in small states, where Republicans tend to dominate. As a result, when the Senate confirms Kavanaugh with support from every Republican present plus one Democrat (which futures markets consider the most likely outcome), a majority of Americans will have had their Senate representatives oppose both Trump nominees.
This scenario is projected in the figure below, which illustrates that no other nominee since 1981 has been put forward by a president who lost the popular vote and confirmed by votes from senators representing a minority of the American public. Kavanaugh and Gorsuch would be outliers in the contemporary era.