More votes but less success: the paradoxes of the Democratic Party

John Kerry, the great Secretary of State at the end of the Obama Administration, powerful U.S. Senator from Massachusetts and the 2004 Democratic Nominee for President, has a new book out called Every Day is Extra. The book and its anecdotes make it clear that the Democratic Party is nowhere near as weak as the Right or the media’s rhetoric. All things considered, the current composition of the Supreme Court and Congress juxtaposed by the number of votes gotten in Presidential elections lead to no conclusion with the absence of injustice. In other words, the numbers for the Democrats are an injustice. How did this happen?

Perspective on the Supreme Court

It appears Brett Kavanaugh, despite all of the sexual misconduct accusations, will be confirmed later today. Before these accusations, Kavanaugh was already a shaky candidate, given much of his career not being open to vetting by the Senate Judiciary Committee, disagreements with U.S. v Nixon, and a tendency to side with corporations. He also seemed to not take the rights of the disabled or reproductive rights very seriously either. There is also the incident with the Parkland Shooting parent. Kavanaugh makes one feel sympathy towards Judge Douglas Ginsburg, who had to withdraw his nomination by President Reagan for smoking marijuana with some Harvard Law School students while teaching there, who would have probably been a great moderate justice.

The Republicans may have stood by Trump all this time despite all the red flags just so they can get a few Supreme Court Justices appointed, as if they rarely get Supreme Court picks. That is simply not the case. By random chance, there have been more Supreme Court vacancies under Republican Administrations for the last 60 or so years. Since 1954, there have been 16 appointments to the Court made by Republicans. The Democrats have only had 6, with two early retirements (Arthur Goldberg left to be UN Ambassador, replaced by Abe Fortas who later resigned due to corruption, only to be replaced by a Republican nomination). The last time a Democrat chose a Chief Justice was 1946, the year President Trump was born. In fact, in the last 51 years, there has only been one man nominated to the Court by a Democratic President, which was Stephen Breyer back in 1994, the last being Thurgood Marshall in 1967. Truth be told, the last time a Democratic President chose a white Christian man to be a Supreme Court Justice was Byron White in 1962, who had a terrible stance on abortion, but generally a reliable centrist on other matters. Justice Marshall was African-American, and both Justices Goldberg and Breyer are of Jewish heritage. The Democrats quietly pushed diversity on the nation’s highest court and Americans seem to not notice.

The Democrats need to fight harder and stronger in opposing stringent and counter-productive conservative nominees in both the appellate courts and the Supreme Court, the same vacancies Senator Majority Leader Mitch McConnell intentionally blocked or left open so they could be filled once Obama left office. The Democrats also lost an appointment to the Supreme Court by McConnell blocking Judge Merrick Garland. Democrats should have campaigned even harder for Hillary Clinton and set aside interior partisan differences after the primary election, at least for the sake of the Supreme Court.

The Republicans have had an advantage in nominations and have tilted the Supreme Court right (currently quite conservative), but they still fought so hard for Neil Gorsuch and Brett Kavanaugh. They brought guns to the knife fight. The Democrats, without compromising a sense of ethics, should fight with that tenacity as well for their nominees and in the Senate and Presidential elections. Fate has not been on their ideological favor. In fact the Democrats got lucky; Republican nominees Earl Warren, William Brennan, John Paul Stevens, Harry Blackmun, and David Souter turned out to be some of the most liberal voices on the Supreme Court; Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy were moderates who occasionally went left on issues as well. Imagine if all those nominees remained more to the right as the Republicans hoped. Our legal system and our country would be very different today.

Not all is bleak- despite the Republicans getting more nominations, the Republican-appointed liberal justices have all been replaced by Clinton or Obama appointees. For a variety of different reasons, the court currently stands 5 conservatives, 4 liberals, all of whom fit neatly under Democratic and Republican appointed.The Kavanaugh confirmation will likely continue this ideological trend with a slight shift right, but it still is not the worst case scenario.

Democratic Success in Presidential Elections

There is clear disproportionality on the Supreme Court, given that the Republican Party has won the popular vote in a Presidential Election only ONCE since 1988. One would think that this would lead to balancing the scales, but this is when the meaning of lifetime appointment should be truly engrained in one’s mind. A lot of Democrats and their critics have both gone into panic-mode criticizing liberals for not succeeding in winning the electorate over. Democrats need to realize that they have simply been on the brink of total dominance in Presidential Elections. They should be confident and open about this, not sheepish and ashamed. Donald Trump making Democrats ashamed of both Hillary Clinton and the rest of the Party is exactly what he wants.

Considering slavery is long over, the electoral college should be abolished. Not to mention that Bush v. Gore, the decision that gave Bush the Presidency and the power of incumbency to stay for a second term, leading to the nominations of Associate Justice Samuel Alito and Chief Justice John Roberts, all on the backs of one of the worst Supreme Court decisions in history.

Speaking of 2004, that was the one election where Republicans have gotten the popular vote since ’88. Kerry’s new book tells the truth: only one state made all the difference. Then-Senator Kerry could have lost the popular vote like George W. Bush in 2000 or Donald Trump in 2016, but if he had carried Ohio, he would have been elected President. The Kerry campaign came that close, despite 9/11 and the wars in Afghanistan and Iraq, to beating an incumbent Republican, with no Ross Perot-spoiler either. Nonetheless, the Republican victory in 2004 is also not a resounding win. There are no resounding wins by the GOP for the White House since 1988.

Hillary Clinton had her shortcomings. Despite that, she was far more qualified, dignified, intelligent, and leagues and leagues better than Donald Trump was on his good days. After all, she did win nearly three million more votes. She was competent on every measure of the barometer. Yet why did she lose states that her husband won in 1992 and 1996? Many of those voters are still alive. Bill, at least once, won Georgia, Florida, Louisiana, Tennessee, Pennsylvania, Michigan, Ohio, Kentucky, Wisconsin, and had an overall strong performance in the South and Midwest, even if Bill did not win the state outright. Secretary Clinton rather handily lost Arkansas, to Trump, a state Clinton carried twice as a former Governor where Hillary was first lady! What has changed since Bubba’s elections? Why did they reject another Clinton despite the south’s love for Bill? There are some theories discussed later below.

Why are Democrats the minority in both chambers of Congress?

So if Democrats are doing so well in Presidential elections, the questions begs itself: why do Democrats not have the House & Senate? The answer is a bit complicated. The first problem has been the effectiveness of running against President Obama’s agenda. Somehow, giving Americans more healthcare than ever before, reducing the deficit dramatically, an economic recovery of historical proportions, and a tough stance on Russia, among plenty of other positives, made for an increase in Republican votes. That is a real paradox. But there is something about the Obama brand and the hatred it produced. Political logic should be thrown out of the window if the President is of color and a Democrat.

The effects of gerrymandering should not be downplayed. Gerrymandering, or the effort to give one’s party an overwhelming advantage in a race through district-makeup, is a game played by both sides. However, the number of gerrymandered districts is far more concentrated in Republican southern and midwestern states. That is simply a fact.

Voter suppression is also not folklore; states with comprehensive, proven voter-suppression in 2012 were once again in the south and the midwest. The same regions were affected again in 2014 (especially North Carolina), in 2016 (1) (2) and voter suppression is still a matter of concern in 2018. The Supreme Court also delivered a fundamentally unsound decision regarding voting clarity in Ohio in Husted v. Randolph Institute in 2018, the same state that made the difference in 2004. That decision was 5–4 , as was Shelby County v. Holder, another preposterous decision by the Court (ibid, previous section on SCOTUS). Both Husted and Shelby are believed to have hurt voter turnout for both minorities and Democratic voters. It is hard to know for sure if this suppression made the difference in the 2016 Presidential Election, but it opens up the possibility of actually “rigged” elections for local councils, state legislatures, statewide office, and Congressional and Senate races. There is significant evidence that voter suppression probably caused Hillary Clinton and Russ Feingold to lose Wisconsin in 2016. Had Feingold won, the preliminary vote on Kavanaugh would have been 50–50, with Vice President Pence breaking the tie. Also, there is the whole voter-suppression effort in Georgia, an attempt to prevent Stacey Abrams from becoming Governor or Georgia, as the Secretary of State, Brian Kemp, is the GOP Nominee himself.

Voter suppression needs to be linked with voter turnout to understand the true ramifications. The 2014 midterms had the lowest voter turnout since World War II, a shocking reality given how many people were away at war in 1944 and yet 2014 numbers match. There was better voter turnout during midterms during the Vietnam War than what was seen just four years ago. The Republican base comes out, and so they win. Voter suppression plus a lack of turnout plays right into Republican hands.

Money talks. Big money talks louder and longer. Citizens United (courtesy of the Roberts Court)(ibid, previous section on SCOTUS) has made a difference in how campaign finance takes place. The Republican money is demolishing Democratic money and in turn, Republicans are winning on all election levels. Simply put, constitutional precedent does not matter and let’s allow seats in the legislative branch to be bought and sold!

There are also minor reasons, like Democrats not campaigning hard enough, ignorance, sexism and racism.

Final Thoughts

As the 2016 Presidential Election revealed, there are more on the left than there are on the right. Donald Trump did lose the popular vote by roughly three millions votes. That is nearly double the entire population of Philadelphia. Even if that statistic is due to boosts from New York, California, Massachusetts, and Connecticut (states often despised by conservatives for big government, Democratic machinery, and high taxes all the while being the strongest economic engines in the entire country). The overall number matters and those votes in New York and California are just as important as the votes in Florida, Ohio, and Michigan, on the principle of one person, one vote which was sealed in Reynolds v. Sims. This is not just an American problem however, as parliamentary elections do allow the possibility of a higher vote total but not the majority of seats won by a party.

Nevertheless, in America, if the Electoral College is here to stay, a popular vote win but an electoral loss should be an isolated rarity (it has now happened 2/5 times this century, just under 50% and one state away from 60%). Democrats are not getting pummeled, in fact these elections for President are competitive. The 2000 election was decided by Florida. 2004 was decided by Ohio. 2016 was decided by Pennsylvania, Michigan, and Wisconsin, all which were very closely contested. Senate seats cannot be gerrymandered, and there is only a 2-seat differential in the U.S. Senate before the 2018 midterms. As things stand, one person, one vote should be enough to help the Democrats control the White House, the Senate, and Congress, with the possibility of making Supreme Court picks.

Special Thanks to Wayne Batchis and Phil Jones, Associate Professors of Politics, University of Delaware.