Why Democrats can’t get a fair shake in the Supreme Court, in one chart

Then-President Barack Obama and then-Vice President Joe Biden stand with Supreme Court nominee Merrick Garland in the Rose Garden at the White House. | Photo by Chip Somodevilla/Getty Images

Republicans get their dream nominees, while Democrats struggle to confirm moderates.

When Donald Trump was president, reading through his Supreme Court nominees’ records felt like attending a dinner party at the unseelie court. The rules were unclear and constantly shifting. Menace lurked behind every corner. And, especially if you are a Democrat, there was an unsettling sense that you would be the dessert.

We are now two weeks from Justice Stephen Breyer’s retirement announcement, which means that I have now had sufficient time to explore the records of three of the most likely replacements — federal Judges Ketanji Brown Jackson and Michelle Childs, and California Supreme Court Justice Leondra Kruger — and the experience could not be more unlike studying the records of Republican contenders.

Say what you will about Trump’s justices, but before they got on the Court, they were quite open about just how eager they are to abolish foundational principles of American law.

Justice Neil Gorsuch reportedly got his current job because Trump’s advisers admired his plans to gut federal agencies like the Environmental Protection Agency and the Department of Labor. Justice Brett Kavanaugh was also a scourge of the EPA, who went out of his way to criticize Roe v. Wade months before his Supreme Court nomination. Justice Amy Coney Barrett was an outspoken opponent of abortion and same-sex marriage. She also called for an expansive interpretation of the Second Amendment, and criticized two Supreme Court decisions that largely rejected efforts to sabotage Obamacare.

Biden’s top candidates aren’t just very different people ideologically, they are temperamentally nothing like Trump’s evangelists for movement conservatism. If you want to discover their views on abortion, guns, or affirmative action — to take three issues that are currently pending before the Supreme Court — you’d be hard-pressed to find much in their judicial opinions or their public speeches.

So why are Biden’s possible nominees so cautious, while Trump’s were so open about just how eager they are to burn things to the ground?

One possible explanation is that Biden, like nearly every other human being who has ever drawn breath, is a more cautious person than Donald Trump. Another is that, with a Republican supermajority on the Supreme Court, liberal judges have little incentive to write bold opinions. It’s not like this Court is going to embrace such an opinion.

But an important answer to this question can be found in this Daily Kos chart by Stephen Wolf:

Stephen Wolf/Daily Kos Elections

The fact that each state gets two senators, regardless of population, has a massive distorting effect on American politics — especially because Republicans are more likely to control low-population states. Thanks to this malapportionment, every voter in red Wyoming has 68 times more impact on the makeup of the Senate than each voter in blue California.

In the current Senate, Democrats and Republicans each control the same number of seats, but Democratic senators represent nearly 42 million more people than their Republican counterparts. Indeed, if the United States chose senators in free and fair elections where every citizen’s vote counts equally, Republicans would not have controlled the Senate since the late 1990s.

Because every federal judge must be confirmed by the Senate, Senate malapportionment is the primary reason why conservative Republicans dominate the Supreme Court — although the Electoral College, which allowed both George W. Bush and Donald Trump to occupy the White House after losing the popular vote, sure didn’t help. If the United States were governed by the principle of one person, one vote, President Barack Obama would have filled the late Justice Antonin Scalia’s seat in 2016, and none of Trump’s justices would have been confirmed.

Indeed, Republicans have enjoyed an unfair advantage in the Senate for so long that it is possible that Democrats might have succeeded in blocking Justice Clarence Thomas, who was confirmed by a 52-48 vote in 1991, if they were fairly represented in the Senate. Chief Justice John Roberts, who won confirmation in a lopsided 78-22 vote in 2005, likely would have still been confirmed in a Democratic Senate. But President Bush might have picked a more moderate nominee than the GOP partisan Samuel Alito if Republicans did not enjoy a structural advantage in the Senate.

The result of this imbalance, in other words, isn’t simply that Republicans now control at least two or three Supreme Court seats that they would not control if the Senate were fairly apportioned. Senate malapportionment means that Republican presidents can nominate the most strident Republican partisans and the most outspoken conservative ideologues, and still expect those nominees to be confirmed.

Democratic presidents, meanwhile, risk having their nominees blocked, Merrick Garland-style, even when the president enjoys majority support from the nation as a whole. And even when Democrats do control the Senate, their majority frequently depends on conservative Democrats like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), each of whom could potentially veto a nominee they deem too liberal.

This structural imbalance, more than anything, explains why Republicans get to appoint their fantasy nominees to the Supreme Court, while Biden’s potential nominees range from dully moderate liberals to humdrum centrists.

Republicans don’t really have a credible case against any of the three most likely nominees

Ketanji Brown Jackson has had a high judicial profile for a pretty long time.

In 2016, Jackson was one of a handful of candidates President Obama interviewed for the doomed Supreme Court nomination that eventually went to Garland. She was also Biden’s very first judicial appointment — Biden promoted her from a powerful trial court in Washington, DC to an even more powerful appeals court. And Jackson is Black, which is relevant to her chances because Biden promised to name a Black woman to the nation’s highest Court.

So anyone who knows anything about judicial politics could tell that Jackson was a leading contender for a Supreme Court nomination under Biden. When Jackson faced a confirmation hearing last April, Senate Republicans had a prime opportunity to unload any dirt they’d uncovered on her, and potentially soften her up for a future Supreme Court confirmation hearing.

Yet her hearing was a stodgy, entirely forgettable affair. Sen. Mike Lee (R-UT), a hardline conservative who once claimed that federal child labors laws are unconstitutional, spent much of his question time asking about sentencing policy. A few senators spent her hearing attacking Demand Justice, a left-leaning advocacy group whose only apparent connection to Jackson is that it supported her nomination. Even Sen. Ted Cruz (R-TX) spent the bulk of his time asking how she understands vague terms like “judicial activism.”

It was obvious, in other words, that Republican opposition researchers had uncovered nothing in Jackson’s record that could be used to build a persuasive case against her, even to other Republicans.

Similar things can be said about Kruger and Childs. Profiles of Kruger bear headlines like “Potential Biden Supreme Court pick Leondra Kruger known as moderate in California,” and “Potential Supreme Court nominee Kruger is described as a moderately liberal justice on California’s top court.” And Childs has even earned some tepid praise from Senate Republicans — Sen. Tim Scott (R-SC) described her as a “strong candidate” for the Supreme Court, and Sen. Lindsey Graham (R-SC) described Childs as a “quality person” and “somebody I can see myself supporting.”

Jackson, Kruger, and Childs all have pretty boring records

Even when Jackson, Kruger, and Childs hear politically charged cases, they typically dispose of them in fairly narrow opinions.

After a criminal defendant challenged a California law requiring police to collect a DNA sample from people arrested on felony charges, for example, Kruger got rid of the case in an opinion arguing that this defendant was the wrong person to challenge the law. When Childs was assigned a case asking her to strike down South Carolina’s ban on same-sex marriage, she sat on the case until the appeals court that oversees federal trial judges in her region ruled that states may not deny marriage rights to such a couple. Then Childs struck down South Carolina’s law on the grounds that she was bound by the appeals court’s decision.

Even when these potential justices do reach decisions that might upset Republicans, moreover, those decisions are often highly caveated. In Committee on the Judiciary v. McGahn, for example, Jackson rejected the Trump administration’s argument that “a President’s senior-level aides have absolute testimonial immunity” from a congressional subpoena, after a House committee subpoenaed former Trump White House Counsel Don McGahn.

While this was a loss for the Trump administration, it was a minor one. Jackson also wrote that “the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege.” So, while she would have required McGahn to physically present himself to the committee, he could have still refused to answer questions that are subject to executive privilege. (Jackson’s McGahn opinion sparked a partisan food fight in the appeals court, and a panel dominated by Republican judges eventually ordered the case to be dismissed in a party-line vote.)

Similarly, in Middleton v. Andino — a decision handed down at the height of the pandemic — Childs temporarily halted a South Carolina law requiring absentee voters to have a witness sign their ballots, reasoning that such a requirement increases the risk that voters could transmit Covid-19 to such witnesses, or vice versa. That decision was eventually blocked by the Supreme Court in an unsigned, two-paragraph order.

But Childs’s full opinion in Middleton is also quite modest. It rejected other voting rights claims brought by the same plaintiffs, including an argument that the state’s ban on campaign workers assisting voters with their absentee ballots violates the Constitution. And, in any event, Childs can hardly be faulted because she failed to anticipate how a Supreme Court, that frequently ignores the text of federal laws and of the Constitution in voting rights cases, would have approached the novel legal questions that arise when an election is held during a historic public health crisis.

The overarching picture that emerges from all three women’s records is that they are cautious, disinclined towards expansive decisions, and more interested in deciding the narrow legal issues that are directly before them than in sparking a revolution that overturns decades of well-established precedents.

Those are all very positive traits in anyone who aspires to lead an unelected branch of government that is not supposed to set US policy. But Democrats who hoped that Biden’s nominee might provide a proudly liberal counterbalance to Trump’s movement conservative reactionaries are likely to be disappointed.

If Republicans continue to appoint their most fervent partisans and ideologues, while Democrats struggle to appoint cautious moderates, the law will continue its march further and further to the right.