Republicans have settled on their explanation for why so many of their leaders immediately declared any nominee President Obama sends to fill the late Justice Antonin Scalia’s seat on the Supreme Court dead on arrival. “The American people should have a voice in the selection of their next Supreme Court Justice,” Senate Majority Leader Mitch McConnell (R-KY) said in a statement almost immediately after news of the justice’s death broke. “Therefore,” McConnell added, “this vacancy should not be filled until we have a new President.”
Republican National Committee chair Reince Priebus offered a Rubio-like repetition of McConnell’s message on Twitter:
This is not about the person this is about the Court. The American people should have a voice in the selection of their next SCOTUS Justice
— Reince Priebus (@Reince) February 17, 2016
It’s a good talking point! People like democracy, and they like the idea of having a voice in their government. Moreover, the fact that the White House and the Senate are controlled by different parties, at the very least, creates the illusion that Democrats and Republicans have equal claims to democratic legitimacy in this fight. The American people created this impasse by electing rival factions to control the two essential players in a Supreme Court nomination fight. Why not let the same voters decide how to resolve such an impasse?
But McConnell’s claim to democratic legitimacy rests on a bed of sand. The only reason why Republicans are not in the minority in the Senate is because the Congress’s upper house is malapportioned to make Americans in small states count more than Americans in more populous states. The 46 members of the Senate Democratic caucus represent over 170 million people. The 54 Republican senators represent less than 150 million.
ThinkProgress compiled these numbers using the Census Bureau’s 2015 population estimates. In states with two Democratic senators, we allocated the state’s entire population to the Democratic column. Similarly, we counted the full population of each state with two Republican senators toward Republicans. In states with one senator of each party, we divided the state’s population in half and allocated one half to each party. Sens. Angus King of Maine and Bernie Sanders of Vermont, who identify as independents but caucus with the Democrats, were counted as Democratic senators.
Using this methodology, 170,761,428.5 people are represented by Democratic senators, while only 149,985,163.5 are represented by Republicans. You can check our work here.
An alternative method of measuring how much Senate malapportionment advantages Republicans is to look at the total number of votes cast in the last three election cycles (each cycle, one-third of the Senate stands for election, so the current Senate was assembled from the results of these three elections). According to the voting reform group FairVote, “the 46 Democratic caucus members in the 114th Congress received a total of 67.8 million votes in winning their seats, while the 54 Republican caucus members received 47.1 million votes.”
So the United States Senate is only marginally more democratic than the British House of Lords. The most populous state, California, has 39,144,818 residents and two Democratic senators. Meanwhile, the least populous state, Wyoming, has 586,107 residents and two Republican senators. That means that a voter in Wyoming has nearly 67 times as much input in the makeup of the United States Senate as a voter from California. So much for one person/one vote.
Though the Senate’s malapportionment is difficult to justify if Americans truly believe that we are all created equal, it can be explained as a relic of the circumstances that led to the 13 original states coming together as a single nation. As Yale law professor Akhil Amar explains in his magisterial history America’s Constitution: A Biography, the Articles of Confederation, which preceded the Constitution, conceived of the United States as “an alliance, a multilateral treaty of sovereign nation-states.” Each state, in other words, was as separate a nation as China is separate from Russia, and the Articles merely bound them together into a kind of mutual commerce and defense pact.
The Constitution, by contrast, bound these separate sovereigns together as one nation. Because a small state like Delaware enjoyed equal sovereignty vis-à-vis larger states like Virginia or New York, even if it did not have the same population, it could reasonably expect to be given equal voice at the Constitutional Convention. The malapportioned Senate was created as a concession to smaller states that may not have agreed to cede much of their sovereignty to a new nation unless they had an outsized voice in the nation’s government.
Whatever logic may have justified this Devil’s bargain in 1787, however, we are now a very different nation. Americans have a national identity that typically dominates our identification with a particular state. Many states, moreover, never enjoyed the same independent sovereignty once enjoyed by the 13 original states. The barely inhabited state of Wyoming, for example, was a United States territory before becoming a state.
Nevertheless, more than two centuries after the first 13 states struck their original bargain, the Senate remains as a monument to largely forgotten concerns. The American House of Lords is unlikely to be dismantled any time soon. But the party that represents a minority of Americans in the Senate should not pretend to have the will of the people on their side.