Amy Coney Barrett’s Confirmation Hearings Were a Master Class in Political Posturing

“After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote.”

The Senate’s Rural Skew Makes It Very Hard For Democrats To Win The Supreme Court

“the Senate is an enormous problem for Democrats given the current political coalitions, in which Democrats are dominant in cities while Republicans triumph in rural areas. And because the Senate is responsible for confirming Supreme Court picks, that means the Supreme Court is a huge problem for Democrats too. Sure, Democrats might win back the Senate this year — indeed, they were slight favorites to do so before the Ginsburg news. But in the long run, they’re likely to lose it more often than not.”

“the overall U.S. population (including Washington D.C. and Puerto Rico) is split almost exactly evenly between these buckets: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.”

“Because there are a lot of largely rural, low-population states, the average state — which reflects the composition of the Senate — has 35 percent of its population in rural areas and only 14 percent in urban core areas, even though the country as a whole — including dense, high-population states like New York, Texas and California — has about 25 percent of the population in each group. That’s a pretty serious skew. It means that the Senate, de facto, has two or three times as much rural representation as urban core representation … even though there are actually about an equal number of voters in each bucket nationwide.”

“Since rural areas tend to be whiter, it means the Senate represents a whiter population, too.”

“In a strong national environment for Democrats, in other words, the Senate can be competitive. Generally speaking, at least. A Democratic-leaning environment wasn’t enough to overcome the Senate’s baseline GOP-lean and a bad map in 2018. Democrats lost seats. And in an average year — and certainly in a year like 2014 where Republicans have the advantage — Democrats face dire prospects in the Senate.”

“despite their current 47-53 deficit in the Senate, Democratic senators actually represent slightly more people than Republicans.”

“the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally. That’s likely to make the Republican majority on the Supreme Court pretty durable.”

To achieve racial justice, America’s broken democracy must be fixed

“The Senate and Electoral College systematically underweight the votes of people of color — and the judiciary operates directly downstream of those biases. Washington, DC, home to the largest plurality of Black Americans in the country, is excluded entirely from federal representation. The filibuster has historically been used to block or delay anti-lynching laws and civil rights legislation”

“Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote. A 2019 study found that Republicans should be expected to win 65 percent of presidential contests in which they narrowly lose the popular vote, and could potentially win while losing the popular vote by as much as 6 percentage points. And this November, FiveThirtyEight’s Nate Silver calculates that Democratic nominee Joe Biden only has a 6 percent chance of winning the Electoral College if he wins the popular vote by 0 to 1 points, a 22 percent chance if he wins by 1 to 2 points, and less than a 50 percent chance if he wins by 2-3 points.”

“The Senate is even more extreme. In a 2019 Data for Progress analysis, Colin McAuliffe found that the Senate has a 3 percentage point tilt toward Republicans (double the 1.5 percent skew in the Electoral College). And that is probably an understatement — Silver recently calculated that the Senate is “effectively 6 to 7 percentage points redder than the country as a whole.” As my colleague Matt Yglesias points out, in 2014, Republican candidates won 52 percent of the popular Senate vote and gained nine Senate seats; in 2016, Democrats won 54 percent of the vote and gained only two seats; and in 2018, Democrats won 54 percent of the vote and lost two seats.

“Because the president appoints federal judges and the Senate confirms them, these biases are also reflected in the judiciary, where the Trump administration has already filled federal court benches with an unprecedented number of young, highly ideological conservative judges, including two Supreme Court justices.
It’s important to underscore the mechanism that generates and sustains this partisan bias: US political institutions systematically underweight the interests of nonwhite Americans.”

“Analyzing the results of the 2016 presidential election, statisticians Andrew Gelman and Pierre-Antoine Kremp found that “per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.”

Behind the Senate’s partisan tilt is that it overrepresents people living in small states who tend to be whiter, on average, than people living in larger states. California, which has large Black and brown populations, and Wyoming, a predominantly white state, have equal representation in the Senate, despite the former having over 60 times more people than the latter.”

“this racial skew distorts policy preferences on issues ranging from gun control to the minimum wage to environmental policy. For instance, 48 percent of Americans believe controlling gun ownership is more important than protecting gun rights; however, when you weigh voter preferences as the Senate does — giving equal representation to each state — support for gun control drops a whopping 5 points, to 43 percent.
Why? Because the Senate overweights the preferences of white Americans, who tend to favor gun rights, and underweights the preferences of Black and brown Americans, who tend to favor gun control. By that same mechanism, McAuliffe finds that support for a $15 minimum wage also drops 5 points (from 58 to 53 percent), and a $100 billion yearly investment in green social housing drops 3 points (63 to 60 percent).”

“This is the status quo that Just Democracy’s coalition members aim to change — and they have a few proposals to do so.”

Is the Senate Filibuster a ‘Jim Crow Relic’ That Should Be Abolished in the Name of Democracy?

“The filibuster, which in its current form prevents a vote on legislation without 60 votes to cut off debate, was first used in 1837 during the controversy over the Second Bank of the United States, and it has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.

It is true that segregationists used the filibuster to oppose civil rights legislation in the 1950s and ’60s. Most famously, Sen. Strom Thurmond, then a Democrat representing South Carolina, spoke for more than 24 hours to impede passage of the Civil Rights Act of 1957, which aimed to protect the voting rights of African Americans in the South. Southern legislators—including Sen. Robert Byrd (D–W.Va.), an ardent defender of Senate traditions—also used the filibuster in an unsuccessful attempt to block the Civil Rights Act of 1964, which banned segregation in public schools and racial discrimination in voting requirements, employment, and places of public accommodation.

But that is just a snapshot of the filibuster’s potential uses, which can be either malign or beneficial, depending on the target and one’s view of the legislation’s merits. Just as the principle of federalism does not qualify as a “Jim Crow relic” simply because segregationists invoked it, the filibuster cannot be deemed irredeemable simply because they found it useful. Like other restraints on the majority’s will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president’s assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws. Whether you think its net impact is good or bad is apt to depend not only on which party happens to be in power but also on your general view of the work that Congress does.

The filibuster was not part of the original constitutional design. It arose from a rule change that Vice President Aaron Burr urged in 1805. As George Washington University political scientist Sarah Binder explained during a 2010 Senate hearing, Burr thought the chamber’s rule book was cluttered with unnecessary provisions, including what was known as the “previous question” motion, which it turned out could be used to close debate with a simple majority. Unlike the Senate, the House of Representatives retained that rule.

“Today, we know that a simple majority in the House can use the rule to cut off debate,” Binder said. “But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, ‘Get rid of the previous question motion,’ the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.” In other words, “the filibuster was created by mistake.””

“In 1917, Woodrow Wilson, outraged by Republican senators’ filibustering of his proposal to arm merchant ships as a deterrent to German U-boats, demanded reform to disempower this “little group of willful men.” The Senate responded by adopting Rule 22, which empowered a two-thirds majority to cut off debate—a compromise between Democrats who favored a simple-majority rule and Republicans who resisted any change. In 1975, the Senate reduced the majority required for cloture from two-thirds to three-fifths, or from from 67 to 60 votes in a chamber with 100 members.”

The Senate Has Always Favored Smaller States. It Just Didn’t Help Republicans Until Now.

“the Senate has always been unequal, long giving less populous states an outsized voice relative to their population.1 But for more than a century, this hasn’t posed much of an issue: Until the 1960s, Republicans and Democrats competed for both densely and sparsely populated states at roughly the same rate

But over the last several decades, that’s changed. The parties have reorganized themselves along urban-rural lines, and there is now a clear and pronounced partisan small-state bias in the Senate thanks to mostly rural, less populated states voting increasingly Republican. In fact, it’s reached the point that Republicans can win a majority of Senate seats while only representing a minority of Americans.”

“Much of this follows from the post-civil rights realignment of American partisan politics, in which the Democratic Party became more consistently liberal (and thus more appealing in big, largely urban states), and the Republican Party became more consistently conservative (and thus more appealing in small, largely rural states). But that gap has also widened in recent years, especially starting in 2015, when Republicans took back a Senate majority, flipping seats in small states like West Virginia, South Dakota, Arkansas, Alaska and Montana — all states that will be tough for Democrats to regain in 2020.”