Kavanaugh vote: tyranny of the minority
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; 51% of the U.S. population is female. Most women in America, according to polls, oppose Kavanaugh’s nomination.
Tyranny of the minority.
* Sen. Lisa Murkowski (R-AK) voted with the minority. Sen. Joseph Manchin (D-WV) voted with the majority.