Kavanaugh and the Tyranny Of The Minority

With Kavanaugh set to be confirmed, despite the certainty that he, like the president who nominated him, will bring death and destruction upon us, wild stories began to emerge. This comes on top of the efforts of pundits like Linda Greenhouse deriding the legitimacy of the Supreme Court as a bunch of partisan hacks in reaction to rulings that fail to meet her progressive desires, and in anticipation of the impact of Justice Neil Gorsuch and soon-to-be justice Brett Kavanaugh.

The most curious attack, which has swiftly entered myth stage, is that these justices are illegitimate because they reflect “minority rule.” The primary contention is that Trump, having failed to “win” the popular vote, a fundamental contortion of our electoral system, is an illegitimate president, and that Kavanaugh, expected to be confirmed by senators representing a minority based upon their state’s population or vote totals, will thus be doubly illegitimate.

Why does it matter? Because the theory is that they reflect a radical conservative view that strays from the “mainstream of American political life.” This myth has already found its way into a New York Times op-ed.

Donald Trump won just under 46 percent of the popular vote and 2.8 million fewer votes than Hillary Clinton. And Judge Gorsuch was confirmed by a vote of 54-45. According to Kevin McMahon of Trinity College, who wrote all this up this year in his paper “Will the Supreme Court Still ‘Seldom Stray Very Far’?: Regime Politics in a Polarized America,” the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.

The simplest response is based on Occam’s Razor, that the simplest explanation that accounts for all known facts is probably correct: both the president, and the justices he nominated, hold their position in complete accord with the mechanisms our Constitution has established for the functioning of our government. You may not like it, but this is what the Constitution provides. In other words, this is a completely irrelevant metric, raised only to provide cover to those outraged but lacking any argument approaching logic.

And, to quash the next response, that the process proves the Constitution is horrible, archaic and established by the Patriarchy to maintain their minority control by racism and sexism, from the electoral college to a simple majority Senate confirmation process, this is America. It’s founded upon our Constitution, even if you really hate it when you don’t get your way. Maybe Venezuela would be more to your liking?

But the premises of this “minority rule” argument require numerous assumptions that not only conflict with our process, but can’t survive rational scrutiny. If our presidential elections were based on popular vote, then votes that happened would be driven by a different dynamic and it would have been a different vote. Participation in voting has always been relatively poor, reflecting the fact that many people don’t care enough to put themselves out by going to the polls.

No vote can thus be claimed to reflect the majority of Americans, because not enough people vote. This may well be considered a good thing, given that many lack the level of political knowledge to register a meaningful vote, but then there is no “knowledge” requirement to exercise the franchise.

But if we elected a president by popular vote, then people in states that were recognized as clearly red or blue might vote anyway, whereas now they feel no compulsion to add one more vote to an already certain outcome. How would this pan out? We don’t know, because it’s not how we do it. Argue about this all you want (though not here), but it won’t change the fact that no one knows the outcome of a popular vote, and it’s a lie to extrapolate our electoral college system into a popular vote system when it suits your argument.

As for the Senate being unfair because of state populations, state votes, this is a facile delusion. Nobody complains when a small state Senator votes in favor of something they support. That we’ve forgotten that we are a nation of states, even states we consider unworthy of our sophisticated concerns, doesn’t change federalism or how our nation was structured. No matter how much you prefer California to West Virginia, our bicameral structure exists because our nation wouldn’t without it.

But then, the bottom line of the contention is that these justices are outside the mainstream of American political thought,* even if they were shoehorned into their posts by a conniving president and Senate who gamed the system to their advantage. What about that?

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. (Emphasis added.)

Putting aside the question of whether the Supreme Court does, or should, “rewrite” laws at all, there is a bizarre belief on the part of progressives that they are the majority, or at least that they are right and anyone who questions this is either stupid or deplorable, and therefore deserves to be ignored. Whether this is the product of social media or academic echo chambers, or merely their belief system that requires no proof, is unclear. But its truth is by no means clear.

On the one hand, it ignores the fact that Republicans hold control over more states than Democrats, governorships and legislatures. On the other hand, it ignores the choice presented to Americans, a vulgar, amoral ignoramus or the promise of a socially-engineered Utopia eradicating American tradition and the American dream in favor of hegemony of the marginalized. The assumption that those who voted for Clinton supported progressivism ignores the possibility that they merely voted against Trump,** not in favor of Hillary or progressive reinvention of their nation.

When faced with a choice of “radical” positions, America chose to remain America. And if this is false, there will be more elections in the future where the mainstream of American political thought can reassert itself by way of Congress and the president.

*Bear in mind when speaking to the mainstream of American political thought that it was uncontroversial when Justice Sam Alito was confirmed, 58-42. Nobody even looked at his high school yearbook.

**One might wonder why Trump didn’t lose 80-20, given his lack of experience, knowledge or plan, plus the outrageously scandalous behaviors that manifested daily. Perhaps the only reason Trump was even in the game was that Americans so overwhelmingly rejected progressivist identity politics that it preferred an idiocracy under Trump as the lesser of two evils.

20 thoughts on “Kavanaugh and the Tyranny Of The Minority

  1. PDB

    This feels like the political science equivalent of data mining — if you parse the numbers enough ways, you will find at least one way of looking at them that will generate the outrage that you’re hoping to create.

    1. SHG Post author

      When the obvious fails to back up your beliefs, search for unicorns. If you search hard enough, far enough, wide enough, you’re bound to come up with something to prove you were RIGHT ALL ALONG!!!

  2. DaveL

    Perhaps the only reason Trump was even in the game was that Americans so overwhelmingly rejected progressivist identity politics that it preferred an idiocracy under Trump as the lesser of two evils.

    I’ve often reflected on how, when faced with a choice between two regimes, both of which display a sneering contempt for some subset of your rights, there is a certain logic in choosing the least competent.

    1. SHG Post author

      There is a glaring hole in the Democrat’s understanding of how they lost that ignores the fact that a great many votes for their candidate reflected a greater dread of the other candidate than any support of their platform or direction. This has caused them to pursue increasingly radical positions, making them even less desirable to non-progressives than before.

      1. B. McLeod

        Both parties are playing to their radical elements. The polling margins are so close, neither group is willing to lose the support of the smallest nutjob splinter faction. The tails are wagging the dogs, leaving mainstream voters effectively unrepresented by anyone.

  3. Mark Brooks

    Mr. Greenfield, permit me to express a few thoughts. I still find it fascinating, that I was a Jamaican (living in Jamaica), seem to have a better understanding of the history of the USA than quite a number of US citizens. When I see the various comments made around such phrases as “popular vote” and “minority rule”, I have to wonder how US history is taught in your schools or whether the students were asleep in classes.

    Surely the name “United States of America” should be a simple explanation of how the government of your country is organized ? I wonder how many of your citizens know that the word “democracy” does NOT appear in either “The Declaration of Independence” or “The Constitution”. It might shock many of them to know, that to the “Founding Fathers” or “Framers of the Constitution”, the word “democracy” was an abhorrent word. They actually dreaded the concept of “popular vote” as they feared “tyranny of the masses” as much as “monarchical rule”.

    Mark Brooks

      1. Mark Brooks

        Mr. Greenfield, should you ever come to Jamaica, I would be delighted to meet your acquaintance, should you so wish. You have my email address.
        Mark Brooks

        1. SHG Post author

          It’s been a few years since I’ve enjoyed a Red Stripe on your lovely island, but it would be my pleasure.

          1. Mark Brooks

            Ah, Red Stripe ! Great to hear that you like our beer and island. Hopefully you will come back and we might meet.


          2. B. McLeod

            I cooked up a big pot of hoppin’ John today, and now I am thinking how well a bottle of Red Stripe would go with it.

  4. Karl Kolchak

    Another thing progressives (or “progs” as i call them) refuse to acknowledge is that many people on the left, myself included, despise identity politics for the way it is used to short circuit attempts to address the severe and worsening economic inequality in this country, and there are probably millions of working class people who are far more concerned about how they are going to put food on the table than whether a woman or minority becomes the next Secretary of Whatever. The progs expect people who “should be on our side” (meaning: poor people) to support their social justice crusades without offering any sort of reciprocity, which shows a breathtaking lack of understanding about how politics works. Maybe they should remember this they next time one of their number smugly asserts his hope that West Virginia coal miners lose their health care, for example, because otherwise they are going to continue to play right into Trump’s tiny hands.

  5. B. McLeod

    As the vote comes on, there is a sense of desperate need to be louder, more outrageous, more assertive, as though this will make people understand. Left unconsidered is the possibility that people of opposing view points understand just fine, and simply don’t agree with the cartoonish demonization of the nominee.

  6. KP

    “”not enough people vote. This may well be considered a good thing,””

    Stick with it!

    Australia has compulsory voting to make sure it stays a bastion of freedom, and has had 6 Prime ministers in 6 years…

  7. Billy Bob

    Amazing is the only word we can conjure. Oh, hi Mr. Trump. So sorry to steal your unearned (and tax-indebted) thunder.

    We predicted your unblemished candidate would win confirmation, but not by such close numbers. You owe Susan Collins!
    He and Doubting Thomas will become bosom buddies! Who would ever have thunk? One is black on the outside, white on the inside. The new kid on the block is white on the outside and black inside. A match made in Heaven.

    This will be a terrible challenge for an already challenged court. Chief Justice Robert’s Rules of Order will have his work cut out for him, as dynamics are in flux and about to change,… for the worse?

    Possibly, this is an Earl Warren moment. Do not misunderestimate PRez Trump’s ability to make this the biggest damn fool appointment of his presidency. The man is not dealing with a “full deck,” after all. It is only a matter of time before he crashes and burns. Hopefully he does not take our great nutty country with him. 25th amendment-breath.

    Who will RBG coddle/cozzie up to? That is where Linda GreenHouse Gas and El-Nina TotenICEberg enter, Stage Right. They have all the answers supremely fit to print and ready for broadcast.These two justices now have something in common which was previously unimaginable.

    So let’s imagine the unimaginable and let sleeping dogs lie. We really don’t care for the Supremes anyhow, as previously posted. We feel sorry for those young women yelling and screaming at our Congress people going about the people’s busyne$$ in an orderly fashion beefore the camera obscuras.

    Femi- Nazi FINEstein is now finished. Chuck “Baby Face” SHOEmer is now an old shoe. Murky Murkowski is Herstory. Jeff Flake is and aalways was a Flake. Sen. BLUEmenthal, from me home state, is another flake in camouflage clothing. (And that is putting it mildly.)

    Who did we leave out? Oh, Lindsey Graham, the cracker from So. Carolina! We luv Charleston, but not this cracker. We the sheeple are getting tired of these hi-tech lynchings. Hold the white bread, we want something more wholesome and nutricios. Trust it.

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