There’s never been a member of the Supreme Court like Neil Gorsuch.
Sure, there have been plenty of white men. There’s been no shortage of Harvard grads on the Supreme Court. And Gorsuch is only the latestin a long line of judgeswho believe that Charles Dickens’ novels describe a kind of capitalist utopia. But Gorsuch literally has less democratic legitimacy than anyone who has ever sat on the nation’s highest Court.
That’s the first in a series of bracing facts laid out by Trinity College political science professor Kevin McMahon in a new paperpublished in the Chicago-Kent Law Review. Last year, for the first time in American history, “the United States Senate confirmed a nominee for the High Court appointed by a President who had failed to win the popular vote with the support of a majority of senators who had garnered fewer votes—indeed far fewer votes— in their most recent elections than their colleagues in opposition.”
The 45 senators who opposed Gorsuch, McMahon writes, received nearly 20 million more votes than the 54 senators who supported him — 73,425,062 to 54,098,387. The 45 senators in the minority also represent more than 25 million more peoplethan the senators who voted to confirm Gorsuch.
By contrast, when President Obama named Chief Judge Merrick Garland to fill the Supreme Court vacancy that is currently occupied by Gorsuch, the 46 Senate Democrats represented about 20 million more peoplethan the 54 Republicans. Also, President Obama won the popular vote. Twice.
Gorsuch is unique, in that he is the only person ever confirmed to the Supreme Court by a minority coalition after being nominated by a popular vote loser, but he is not the first member of the Court confirmed by a bloc of senators who were elected by a minority of the voters. According to McMahon, “that distinction belongs to Clarence Thomas.”
Justice Samuel Alito, who was appointed by President George W. Bush in 2005, also was confirmed by a minority coalition in the Senate. By contrast, the Democratic justice who received the narrowest confirmation vote, Justice Elena Kagan, was supported by a bloc of senators who received nearly 70 percent of the popular vote. ...