Political News

Debunking the idea that a 'fair' Senate would never have confirmed Brett Kavanaugh

Posted October 9, 2018 3:58 p.m. EDT

— In the wake of the Senate's 50-to-48 vote to confirm Brett Kavanaugh to the Supreme Court, a line of argument quickly emerged among opponents of Kavanuagh (and President Donald Trump): The fact that California and Wyoming get the same 2 votes in the Senate is totally ridiculous and, if the Senate votes more accurately represented the populations of the country, Kavanaugh would never have been confirmed.

This tweet by Ken Dilanian, a national security and intelligence reporter for NBC News, was indicative of that view. "It may not happen in our lifetimes, but the idea that North Dakota and New York get the same representation in the Senate has to change," wrote Dilanian. (He was quickly pilloried by conservative media outlets for the sentiment.)

There's two problems with this logic.

The first is, well, constitutional. Back in 1787, there was a major debate as to how representation in both the House and Senate should work. Those in larger-population states argued that they should be granted more sway due to their large number of constituents. Smaller states sought equal representation regardless of population.

The "Connecticut Compromise" (all good things come from Connecticut!) was struck whereby the House would decide representation based on population while the Senate would opt for equal representation, with two senators coming from each state. Ben Franklin was the lead proponent of the idea; James Madison argued against it. It was eventually narrowly passed by the Constitutional Convention. (Read more on how the representation fight played out here.)

Anyone who knows their American history knows those facts. But, it's still important to remember that the Founding Fathers had this same debate more than 200 years ago. The desire of large population states to have more power -- and small population states to restrict that power -- is not a new issue. This isn't, say, the fight over the 2nd Amendment and the need for a standing militia then versus the way in which the amendment is interpreted now. You can disagree with the decisions the Founders made way back when, but it's hard to say that they did so ignorant of the way their decision might impact things 200 years hence.

Second, the argument over how everything would be different if the biggest states -- by population -- had more say in the Senate than the small ones doesn't really bear itself out.

Let's start with the 10 biggest states, according to the latest Census Bureau estimates:

1. California (two Democratic senators)

2. Texas (two Republican senators)

3. Florida (one Republican, one Democrat)

4. New York (two Democrats)

5. Illinois (two Democrats)

6. Pennsylvania (one Republican, one Democrat)

7. Ohio (one Republican, one Democrat)

8. Georgia (two Republicans)

9. North Carolina (two Republicans)

10. Michigan (two Democrats)

Total: 11 Democrats, nine Republicans

Now the 10 smallest states:

1. Wyoming (two Republicans)

2. Vermont (one Independent, one Democrat)

3. Alaska (two Republicans)

4. North Dakota (one Republican, one Democrat)

5. South Dakota (two Republicans)

6. Delaware (two Democrats)

7. Rhode Island (two Democrats)

8. Montana (one Democrat, one Republican)

9. Maine (one independent, one Republican)

10. New Hampshire (two Democrats)

Total: 11 Republicans, seven Democrats, two independents who caucus with Democrats

So, if you do the math, the 10 smallest and 10 largest states are represented by 20 Republicans and 20 Democrats (or independents who caucus with Democrats). Which is, literally as equal as you can possibly get.

Now, as my friend Philip Bump at the Washington Post notes, if you take the people represented by the 50 senators who voted for Kavanaugh, you get 44.2% of the overall population. Which means that 55.8% of the population is represented by the 48 senators who opposed Kavanaugh's confirmation.

Which, fair enough. But, that calculation includes the two Democratic senators from California, which has roughly 11 million more people than the next most populous state of Texas (California accounts for more than 12% of the total population in the US). That's a 22 million person gap for the anti-Kavanaugh side -- just out of California alone.

The Point: Kavanaugh got confirmed by the rules of the Senate as outlined by the Founding Fathers. And, it wasn't solely a small state vs. big state thing. You can not like the outcome. You can want the rules to be different. But, that doesn't change the fact that Kavanaugh got confirmed fair and square.