The Rules Have Changed
Thank you, Madam Chairwoman, and thank you to the distinguished members of the Senate Select Committee on Rulemaking for inviting me here today to testify before you. I’d like to thank also my home state senator, the gentleman from Indiana. It was his idea to reach out to a few ordinary citizens, to see what “the voice of the American voter” might sound like in this hallowed chamber. It is a bold experiment, and I hope my remarks don’t lead senators to conclude it was a bad idea.
I was asked to speak, from an outsider’s perspective, about the “rules of the game” in politics, and how the current practice of representative democracy in Washington looks to a person out in the hinterlands. As we move now toward another contentious Supreme Court confirmation, I’ve taken a special interest in a certain set of rules that have governed the Senate, especially concerning the “advice and consent” responsibilities with regard to presidential appointments of federal judges. The Senate, as we all know, has lately been embroiled in controversy over the matter of Supreme Court nominations. This body has created a great deal of confusion on the simple question of whether vacancies should or should not be filled during an election year. You’re about to do it now, and in an especially hurried manner, with only weeks to go before the presidential election. And yet many of us were told only four years ago that such things ought never happen in a Senate that respects the voters.
To prepare for this testimony, I have studied carefully the public statements of leading senators, giving special attention to principles stated by Majority Leader Mitch McConnell of Kentucky and Senate Judiciary Chairman Lindsey Graham of South Carolina. These are two of the most experienced senators in this Congress, so it stands to reason they would have deeply considered beliefs about rules that promote fairness in the democratic process. Let us consider their views.
What is the core democratic principle that senators so passionately articulated here?
It is well known that Senator McConnell developed a firm conviction after the death of Justice Antonin Scalia in February of 2016 that vacancies on the Supreme Court should not be filled in an election year. His statement at that time was: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Just about every Republican senator echoed this stance. Senator Graham explained it further: “We’re setting a precedent here today, Republicans are, that in the last year—at least of a lame-duck eight-year term, I would say it’s going to [apply to] a four-year term—that you’re not going to fill a vacancy of the Supreme Court, based on what we’re doing here today. That’s going to be the new rule.” As McConnell often noted, others had previously advocated such a rule, including the former senator from Delaware, Joe Biden. Therefore, President Obama’s nominee in 2016, Judge Merrick Garland, was deprived of a hearing and a vote and the seat was not filled until the following year, after Obama left office.
What is the core democratic principle that senators so passionately articulated here? It is “the American people should have a voice.” Of course, the voters had a voice in choosing the sitting president, and the president’s constitutional power is to nominate justices to the Supreme Court. The voters also chose the Senate, which has the constitutional power to withhold consent. But as an election approaches, McConnell seemed to believe, the president’s power is nullified. In the final year of his term, he loses his power to fill court vacancies. However, the Senate’s power is not nullified. Those senators who are also in their final year of a term do not lose their power to veto the president, or to confirm a nominee if they so choose.
So “the American people should have a voice” does not sufficiently explain the principle at work. We now know that Senator McConnell and Senator Graham spoke simplistically in explaining their stance against an Obama appointment. As we learned in 2020, the new rule was not, as Graham said, “that in the last year . . . you’re not going to fill a vacancy.” Once a vacancy was created by the recent death of Ruth Bader Ginsburg, both McConnell and Graham clarified that election-year appointments to the bench are acceptable—even as close as a month before the voters go to the polls—if the presidency and the Senate are controlled by the same party. In this case, there would be no need to wait to hear the voice of the American people, because they’ve already spoken through the results of the previous election, not the upcoming one. Once again, just about every Republican senator immediately echoed this stance.
In explaining how the rule really works, McConnell has clarified that certain past elections are more important than others. Obama’s reelection mandate in 2012 was mitigated by the midterm election of 2014, in which Republicans were granted a 54-46 Senate majority. Divided government is what caused the president to lose his power to appoint judges. It was the vote in 2014 that expressed the true will of the people, not the one in 2012.
The Republicans lost a couple of Senate seats in 2016 but managed to secure the presidency and hold the Senate. And after the 2018 midterms, they enjoyed a 53-47 majority. Therefore “the American people” were presumed to be voicing their support for the Republican agenda. You might conclude from the statements of our principled leaders that what guides their decision-making is deep respect for the opinions of the American people as discerned from election results. Let us then look a little closer at the partisan opinions of voters.
How are we to understand majority opinion—for that is what McConnell is claiming gives the GOP its mandate—other than by counting the number of votes? Certainly he would not claim that ten thousand votes have more weight than twenty thousand votes. It seems essential to note, then, that Barack Obama was elected in 2012 with 62.6 million votes. Two years later, Mitch McConnell was re-elected to the Senate in Kentucky with less than 2 percent of the president’s backing: 806,787 votes. Yet McConnell knows that the rules allow him to arrogate almost as much power as the president. That power gives him deep satisfaction, as we saw when he told a group of supporters in Kentucky, “One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy.’”
In explaining how the rule really works, McConnell has clarified that certain past elections are more important than others.
We understand, though, that the Majority Leader’s power derives not just from his own voters, but from the support of his Republican caucus. So we might ask how many voters the full Republican majority represents. And here’s the awful truth: if you add up the votes most recently won by each of the current fifty-three GOP senators—the class produced by the elections of 2014, 2016, and 2018—it comes to 55.1 million. Not only is that quite short of the 62.6 million votes for Obama in 2012, it’s less than the 65.8 million votes Hillary Clinton won as she edged out Donald Trump in the 2016 popular vote. But there’s one total that’s even higher than that: today’s forty-five Democratic senators together won their seats with 68.1 million votes. (Add in the two independents—Sanders of Vermont and King of Maine—and the total comes to 68.7 million.) Imagine that: the minority of forty-seven senators was elected with about 5.7 million more votes than President Trump received in 2016.
Though we are discussing the Senate, we should also note the recent election results in the House of Representatives, which reflect the will of the voters more reliably than Senate races do. Recall that the Republican leadership put great stock in their gains in the midterm elections of 2014, which they interpreted as a rejection of President Obama (creating the “divided government” that made it appropriate to stymie his judicial nominations). Yet today they ignore the Democratic wave election of 2018, which suggested a rejection of President Trump’s agenda. Democrats gained forty seats in the 2018 midterms, giving them a 235-200 majority in the House. Did this suggest a questionable mandate for the president? The Democratic House candidates that year racked up 60.7 million votes. The Republican candidates won just under 51 million votes.
So again, we must ask: What is the core principle Leader McConnell is acting on? It is not that “the American people” should have a chance to vote for a new president before another lifetime appointment to the High Court is made. Nor is it that they have already sanctioned an election-season choice by giving Republicans the White House and the Senate—neither the president nor the GOP Senate majority won majority support from the electorate. To state the principle honestly, McConnell would have to acknowledge it’s not the majority opinion of the American people that matters, it’s the unbalanced power of the states. Kentucky stands on equal footing with California in deciding upon these lifetime appointments. So I would suggest to you that the McConnell Rule amounts to this: “Supreme Court appointments are acceptable in an election year when a few large conservative states with active voter suppression programs (Texas, Florida, and Georgia) combine with mostly rural low-population states to elect a president and a Senate without an electoral majority.” This is what he calls a “united government” with a clear mandate.
I’m sure many of you on this distinguished panel are aware of the bitter partisan complaints that have been engendered by Leader McConnell’s governing style. He has been called a cynic, a “dollar-store Machiavelli,” and “the gravedigger of American democracy.” And yet those of us who have studied his career know he sees himself as a devoted student of the Constitution and the rules of the Senate. We can be sure he would be little interested in the critique of his inconsistent rationales that I have outlined here. The fact that Republicans hold power in the Senate with 13.6 million fewer votes in their column than Democratic senators is simply an artifact of our constitutional structure. And it is the states that choose the president through the Electoral College, not the people through the national vote. Majority Leader McConnell operates within this constitutional framework and no doubt sleeps easily at night in his conviction that he faithfully follows the letter of the laws.
But we are here today to discuss rules. We are well aware that the rules of the Senate, both the written and unwritten ones, change over time. Senator Lindsey Graham has given us a good understanding of how mercurial and emotional the rule-making process of the Senate can be. He sounded firm in his conviction in 2016 when he declared “the new rule” against filling Supreme Court vacancies in an election year. In explaining his change of heart in a letter to his fellow senators recently, he confessed he was still angry over the way Democrats treated Brett Kavanaugh, and for that matter Robert Bork, Clarence Thomas, and Samuel Alito, when they appeared before the Senate for confirmation hearings. Consequently, Graham recently explained, “the rules have changed.”
I think we can all agree that spite is not necessarily the highest justification for changing the rules. If you haven’t thought more than a few minutes about the question, you might take the high-minded stand that seeking partisan advantage is not a good justification, either. But what do we do when partisan advantage is inherent in existing rules? The pursuit of new rules is bound to either add to those advantages or to reverse them. There is no neutrality in politics. Yet, there ought to be a pursuit of fairness. This is a sports-crazed nation: everyone should be able to understand the problem if a basketball game is played with one team getting four points for every shot made from behind the “three-point” line, while the other team gets only two points.
It seems to me to be a damn shame that we don’t currently have a political party that is willing to stand up and fight for the true interests of the American voter.
We have seen the results of crafty Republican partisanship: control of the presidency, the Senate, and many state legislatures, all as part of a drive to impose minority rule on the rest of us. Meanwhile, the Democratic Party fails to defend essential principles of fairness and democracy. I saw the other day a Republican strategist quoted by a newspaper columnist claiming that Mitch McConnell and the Democrats’ Senate leader Chuck Schumer “play the same game. McConnell just plays it a little better.” This is wrong on both counts. Minority Leader Schumer plays a different game. He and others in the Democratic leadership believe they can impress voters by acting like reasonable and civil moderates who “play by the rules,” which are stacked against them. We also can’t know whether McConnell truly plays the game better. He uses a structure that gives him many built-in advantages.
The difference is that he is willing to use the rules—and change the rules—in whatever ways benefit his party’s hold on power. So I now come to my modest proposals. These are premised on the possibility that the Democratic Party will someday win back control of the White House and the Senate, while holding a majority in the House. And further, that leaders of the Democratic Party might decide to remake the party as a powerful force for a functioning and fair democracy.
The pursuit of new rules is bound to either add to those advantages or to reverse them. There is no neutrality in politics.
All eyes now are on the Supreme Court. The judicial branch is, by design, the most insulated from democracy’s passions. Yet what we have now is a travesty. Consider: the Supreme Court itself gave the 2000 election to Republican George W. Bush, though he lost the popular vote. Bush then was able to name two Republicans to the High Court. In 2016, Donald J. Trump again was elected while losing the popular vote. He’s appointed two more very conservative Republicans to the court and will soon install a third. Five justices appointed against the will of the voters! It would probably seem fair to a great many citizens—as it does to me—if Congress, perhaps next year, declared a new rule: for every Supreme Court Justice nominated by a president who lost the popular vote, there will be one seat added by the next elected president who wins the popular vote. Like Leader McConnell himself has said: “the American people should have a voice.”
Admittedly, this has a touch of that spitefulness I mentioned earlier. Better perhaps to speak the language of reform and enact the kind of proposal that many sober thinkers have advocated in recent years: add a specific number of seats—at least two—and end the lifetime terms for Supreme Court Justices, giving each one fifteen or eighteen years before they are then re-deployed to sit on other federal courts. This could be done by Congress without a constitutional amendment.
The Senate itself desperately needs reform if it is ever to become even slightly more representative. Both sides of the aisle recognize the disabling effects of allowing a minority of senators to block legislation by use of the filibuster. As a writer I admire recently noted,
The Senate’s departure from one person, one vote is mindboggling—in the case of the filibuster, forty senators from states representing 9 percent of the population are capable of blocking a bill. Perhaps a better measure of our lack of liberty, senators from states representing 16 percent of the people are enough to enact a bill (assuming no filibuster).
The Democrats eliminated the filibuster for votes on federal court judges, and then Leader McConnell agreed with that sentiment by eliminating it for Supreme Court nominations. If deciding on judges can be done with fifty-one votes, why not allow the Senate to make other important decisions by majority rule?
There are many, many creative solutions available to the majority party—adding new states to bring at least a few new Democratic senators into the mix is not just pragmatic, it’s justifiable on its own terms: give unrepresented citizens the vote. Rebalance the outlandish over-representation that gives North Dakota and South Dakota four votes in the Senate (combined population: 1.6 million residents) while the 39.5 million residents of California have two votes.
In instances like this, we understand that the Constitution itself is the source of so many of our democratic inequities. We also know that it is nearly impossible to remedy them through the amendment process. We’re hemmed in by dreadful compromises made two centuries ago. Yet all of you know that much can be altered by better rules and better laws. As I conclude my remarks and thank the distinguished committee members for their attention, I urge those of you who are now in the opposition to learn from the creative rule-changing of today’s Republican Party. Consider what you can do when the season changes and you find yourself with a moment of opportunity. Take heart: if the Republicans can accomplish as much as they have after years of consistent minority support from the American people, imagine what a party could do by rallying a majority behind the radical idea that the majority of voters need to be heard, and their interests served.