The People, the Senate, and the Supreme Court

By Remy Smith

Supreme Court Justice Antonin Scalia’s sudden death has led to a constitutional showdown between Senate Republicans and President Obama over the conservative justice’s replacement. The inevitable brinksmanship and bargaining of this moment – an extension and culmination of the past five years’ gridlock and conflict – is further exacerbated by electoral antics. While most of the reasons for this confrontation have been analyzed, understood, and twisted to support ideological convictions, one culprit has yet to be vetted: Senate apportionment.

As will be shown, the Senate’s undemocratic apportionment inflates the number of Republicans in the chamber, which, in turn, alters the political dialogue over the Court’s nomination. Rather than discussing whether the Republicans would filibuster President Obama’s Supreme Court nominee, or who Obama could nominate to attract Republican support to overcome a filibuster, current discourse centers around Republican refusal to even hold nomination hearings. Though ultimate outcome might not change, the findings call into question Senate deliberation and process, both now and in times when a different apportionment scheme would give Democrats a filibuster-proof majority.

Article I, Section 3, mandates that “The Senate of the United States shall be composed of two Senators from each State,” regardless of state population, a scheme guaranteed by Article V. As a result, Wyoming’s 584,153 residents (0.18% of the country) have the same senatorial sway as California’s 38,802,500 residents (12.17% of the country). Political scientists have documented the results: small states gain a significant representational advantage over their large state counterparts, a disparity that has real and crucial impacts on distributive polices. As goes relative representation, so go federal dollars.

Because of the urban-rural divide, regional variation in political leanings, and other factors, the Senate’s undemocratic apportionment inflates the number of Republicans in Congress. This probably skews Senate outcomes away from what “the people” as a whole want. But what if the Senate itself were more democratic, embracing, to an extent, the “one person, one vote” standard the Supreme Court requires of all other legislative districts?

I answered this question by applying the House of Representative’s apportionment scheme to a simulated Senate in which each state receives one senator and the remaining 50 are allocated by population. Every state still gets a say, but large states like California and Texas approach representational parity. All other Senate rules remain the same to keep the chamber operating within the Constitution’s framework and the Founders’ intent (except, of course, with regards to apportionment). Using data from the states’ existing senators and recent elections, I ran statistically-based simulations to create a hypothetical Senate to determine what would happen if Senate power followed “the people” rather than the states.

The results are mapped in Figure 1 with new senator totals shown in the middle of each state; colors reflect the mean ideology of the states’ senator(s). Most states—28 of them—are reduced to one senator because of their small populations. At the other end of the spectrum, behemoths California and Texas have 10 and 7, respectively.

smithsenatemap1

Figure 1 Seat allocation and ideology in a democratic Senate

The number in the state indicates how many seats it would have if Senate seats were allocated in part by population. The color of the states indicates the predicted partisan-ideological character of the state’s delegation (mean DW-NOMINATE score), with Red being conservative/Republican and Blue indicating liberal/Democrat.]

In this democratic chamber, it would be much more difficult for senators representing a small minority of Americans to obstruct Senate business with the filibuster. Currently, if the small states banded together, 41 senators representing just 10 percent of the population could effectively stop most legislation (or judicial confirmations). Under a democratic allocation, 41 senators would represent at least 98 million people, or just under a third of the nation.

The Democratic Party gains a number of seats under this regime due mostly to small, rural states losing a (typically Republican) senator and large, blue states (like California and New York) gaining a number of seats. Figure 2 shows Senate majorities under this apportionment scheme during Obama’s tenure and Figure 3 compares the partisan and ideological makeup of the democratic Senate (bottom row) with the actual Senate we have today (top).

 

 

smithsenatebarfig2

Figure 2. Senate majorities under the democratic scheme

With an altered method of apportionment and a Democratic majority the Supreme Court fight would look dramatically different. Hearings would be held and the nominee would be brought to the floor. Unable to use agenda setting powers to obstruct the nomination, Republicans would be forced to filibuster the vote (interestingly, while the Democrats seize the majority, the ideology of the filibuster pivot remains roughly the same in the simulated democratic Senate and today’s real Senate).

smithsenatedwnominatefig3

Figure 3. Ideological distribution of the democratic vs. actual Senate 

The top row illustrates the DW-NOMINATE scores and partisan affiliation (negative meaning more liberal, blue meaning Democratic) of the current Senate. The bottom row depicts the predicted scores for a democratic Senate. For each chamber, key institutional players in the nomination-confirmation process are noted: the Chamber Median (CM), Democratic median (DM), and Filibuster Pivot (FP). Ideological estimates (attained from Lee Epstein’s Judicial Common Space scores) of justices Elena Kagan (EK), Stephen Breyer (SB), and Antonin Scalia (AS) are positioned in the center row.

Obama nominating a judge whose ideology aligns with the Democratic Senate median would result in a fifth liberal justice, one whose viewpoints and decisions would likely be similar to those of Stephen Breyer. Republicans would need to filibuster the proceedings to prevent a liberal Court takeover. That would lead to a new, and dissimilar, political calculus. Would Senate Republicans deprive the majority of a confirmation for 8 months? Who would Obama nominate to attract six Republicans? Would the Democrats move to eliminate judicial filibusters to ensure Obama’s appointee reach the high court?

Those hypothetical questions of course cannot be answered. However, that they come to mind clearly demonstrates that a democratic Senate would be grappling with completely different set of issues regarding Scalia’s replacement than the arguments currently pervading the discourse.

That very logic can be extended beyond this single instance of obstruction and gridlock, and raises additional questions. If one debate can be dramatically altered due to apportionment, it must be asked: what policy considerations and legislative outcomes have been impacted, caused, or defeated by the Senate’s undemocratic representational scheme?

 

Remy Smith is a junior at Northwestern University where he studies political science and history. You can find him on Twitter @remysmith44

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