On Friday, the U.S. Senate voted 51-49 to send the nomination of Brett Kavanaugh to the Supreme Court of the United States to the floor of the Senate for a vote.
The party-line vote* reflected a studied rejection of wide-ranging calls for delay and/or rejection of the nomination from religious leaders, lawyers and friends of the nominee as well as editorial boards.
The vote also reflected the tyranny of the minority that is today’s Senate.
The GOP holds a narrow majority, 51 seats, in the Senate. However, much like Donald Trump was elected president in 2016 with fewer votes than Hillary Clinton, the GOP Senate represents a minority of Americans.
Political scientists have historically focused on the challenges of majority rule on democratic institutions. Tyranny of the majority means it is possible for a majority of those voting to place their interests above, or at the expense of, those in the minority. John Adams, James Madison and John Stuart Mill each believed that a republic, rather than a direct democracy, would insulate the United States from “the violence of factions.”
Madison, in Federalist Paper 10, wrote of concerns
that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.
By this definition, what happened on Friday could accurately be seen as the tyranny of an “overbearing” majority given the very real questions regarding this nomination.
Benjamin Wittes of Lawfare Blog provides an overview of concerns about the nominee (emphasis added):
I have a long relationship with Kavanaugh, and I have always liked him. I have admired his career on the D.C. Circuit. I have spoken warmly of him. I have published him. I have vouched publicly for his character—more than once—and taken a fair bit of heat for doing so…
The Brett Kavanaugh who showed up to Thursday’s hearing is a man I have never met, whom I have never even caught a glimpse of in 20 years of knowing the person who showed up to the first hearing….
I don’t believe that Supreme Court justices get to tell self-exculpating white lies—and I don’t believe in white lies from anyone else, either, in sworn congressional testimony…
Faced with credible allegations of serious misconduct against him, Kavanaugh behaved in a fashion unacceptable in a justice, it seems preponderantly likely he was not candid with the Senate Judiciary Committee on important matters, and the risk of Ford’s allegations being closer to the truth than his denial of them is simply too high to place him on the Supreme Court.
Wittes reminded readers of a Guantanamo Bay habeas case in the D.C. Circuit called Al-Adahi v. Obama:
…false exculpatory statements are evidence—often strong evidence—of guilt.
Kavanaugh was part of the DC panel that decided the Al-Adahi case unanimously.
This basic principle of the American judicial system entered the national conversation last week when Sen. Richard Blumenthal (D-CT) asked Kavanaugh if he was familiar with “the jury instruction falsus in omnibus.” Kavanaugh declined to translate the Latin, deferring to Blumenthal:
“False in one thing, false in everything,” Blumenthal replied. “Meaning in jury instructions that we — some of us as prosecutors have heard many times, is — told the jury that they can disbelieve a witness if they find them to be false in one thing.”
Yet in a very real sense, that 51-49 vote on Friday represented the tyranny of the minority, just like the committee vote that preceded it.
Those 51 senators represent only 44% of the U.S. population.
The 49 opposition senators (46 Democrats, two Independents, one Republican) represent 56% of the U.S. population.
On the Senate Judiciary Committee, all Republican members are men. Of the 51 votes on Friday, 46 were cast by men. Most women in America, according to polls, oppose Kavanaugh’s nomination; 51% of the U.S. population is female.
Tyranny of the minority.
The Court is supposed to be above partisanship. Yet, as Stephen Burbank, University of Pennsylvania Law School professor pointed out:
Kavanaugh’s statements were so partisan and suggested so strongly an inability to be independent on any sort of issue salient to contemporary politics that his confirmation would put at serious risk the rule of law.
Americans who claim GOP affiliation represent about 1-in-4 adults. Trump supporters are a minority.
Add tyranny of the partisan to cap things off.
* Sen. Lisa Murkowski (R-AK) voted with the minority. Sen. Joseph Manchin (D-WV) voted with the majority.
A list of people and organizations opposing Brett Kavanaugh’s nomination to the Supreme Court of the United States:
- 2,400+ law professors sign letter of opposition, NY Times
- 14 Arizona State University law professors from sign letter opposing Kavanaugh, AZ Central
- 40 Harvard law professors sign op-ed in opposition , Harvard Crimson
- 900 female law school faculty members sign op-ed in opposition, The Hill
- Northwestern Law professors sign on to NYT op-ed opposing Kavanaugh’s confirmation, Daily Northwestern
- American Bar Association to reevaluate Kavanaugh’s high rating, citing his ‘temperament’, Washington Post
- I Know Brett Kavanaugh, but I Wouldn’t Confirm Him, Benjamin Wittes, The Atlantic
- Retired Justice John Paul Stevens Says Kavanaugh Is Not Fit for Supreme Court, NY Times
- ‘This is an extraordinary moment’: Yale Law faculty call on Senate committee to treat allegations seriously in Kavanaugh nomination, Washington Post
- Three former Kavanaugh clerks tell Senate they are ‘deeply troubled’ by allegations
- 2,400+ law professors sign letter of opposition, NY Times
- Editorial boards
- Brett Kavanaugh doesn’t belong on the Supreme Court, LA Times
- Brett Kavanaugh investigation should be free of handcuffs, USA Today
- Confirmed: Brett Kavanaugh Can’t Be Trusted, NY Times
- How Brett Kavanaugh Failed, NY Times
- It is time for the Kavanaugh nomination to be withdrawn, America Magazine
- The fix is in for Brett Kavanaugh, Baltimore Sun
- Senator Collins: Oppose Brett Kavanaugh’s nomination, Boston Globe
- Susan Collins’ Game Changer, New York Sun
- Vote no on Brett Kavanaugh’s confirmation, USA Today
- Vote ‘no’ on Kavanaugh, Washington Post
- With a ‘yes’ vote, Sen. Collins ties her legacy to that of Brett Kavanaugh, Portland Press Herald
- Why the ACLU opposes Brett Kavanaugh’s nomination to the Supreme Court, ACLU
- Religious commentary
- Mormon women demand LDS senators halt Kavanaugh hearings so misconduct allegations can be investigated, Washington Post
- The Evangelical Case Against Judge Kavanaugh, Jonathan Wilson-Hartgrove, NYT
- The National Council of Churches makes a rare statement to oppose Kavanaughs, Washington Post
- Other organizations
- Alaska governor, lt. governor, come out against Kavanaugh, The Hill
- Kavanaugh should not be on the Supreme Court, MA, Boston Globe
- Murphy tweets opposition to Kavanaugh, NJ, New Jersey Globe
- Three GOP decline to sign letter supporting Kavanaugh, MA/MD/VT, The Hill
- Senate communication
- 1,600 men say they believe Christine Blasey Ford in full-page newspaper ad, USA Today
- Kavanaugh doesn’t have right temperament for bench, 88 Maine writers send letter-to-the-editor, Portland Press Herald
- Hundreds of Alaska female attorneys tell Murkowski, Sullivan ‘no’ on Kavanaugh, Fairbanks Daily News-Miner
- Sen. Collins must protect high court’s credibility, vote ‘no’ on Kavanaugh, 160 Maine lawyers and law professors send letter-to-the-editor, Portland Press Herald
- Kavanaugh’s Former Yale Classmate Explains Why He Withdrew His Support, NPR
- Nearly 100 alumni of Georgetown Prep sign petition against Supreme Court nominee, The Intercept
- We were Brett Kavanaugh’s drinking buddies. We don’t think he should be confirmed., Washington Post
- Yale Law Students and Alumni Denounce School’s Support of Brett Kavanaugh, Town and Country Magazine
- Notable tweets
- If Brett Kavanaugh makes it through, women’s anger will be unstoppable, Suzanne Moore, The Guardian