PHILADELPHIA, Pennsylvania — “Americans re-elected our majority in 2016 and expanded it in 2018…”
Slow down, Mitch McConnell. As you mock the memory of Supreme Court Justice Ruth Bader Ginsburg, you can thank the delegates to the Constitutional Convention, especially New Jersey icon William Paterson, for the chance to rise to your position as Senate majority leader.
McConnell is now leading the drive to appoint a Supreme Court justice whose support derives from a minority of American voters.
Under the constitution, a president can be elected by a minority of voters, and the majority of senators can be elected collectively by a minority of voters. Trump was elected by a minority as were the 53 Republicans who now control the Senate, and they are authorized to stack the Supreme Court with right-wing justices whose rulings often threaten the welfare and freedom of the people.
Most American Jews live in states represented by Democrats in the Senate, including New York (1.5 million Jews); California (1 million); and New Jersey (nearly a half-million). Even in states with one or both Republicans in the Senate, the vast majority of Jews are clustered in Democratic strongholds which include south Florida, Cleveland and Philadelphia and its suburbs.
So long as we allow this system to endure, we run the risk of coping with justices who have archaic attitudes toward the law. We will fall short of forming a more perfect union, as stated in the Constitution’s Preamble.
If former Vice President Joe Biden defeats President Trump on Nov. 3, conservatives can form a majority of 6-3 or 5-4 majority that leaves no hope of evenhanded decisions. The line-up would depend on Chief Justice John G. Roberts Jr.’s positions, who sometimes sides with liberal justices.
Justice Ginsburg exemplified what justice is about and applied the law to better all our lives. We lost a 5’-1” legal giant on Friday night, and now the president and the Senate leadership plan to do the same to her as past Republicans did to Thurgood Marshall. Our first African-American justice fought in court to empower the black community while Ginsburg bolstered the rights of women; RBG was the second woman named to the court.
When Marshall retired in 1991, the elder President Bush replaced him with another black man, Clarence Thomas, who was regarded as a defender of white supremacy. Trump pledged to nominate a woman this week, almost certainly the antithesis of RBG’s principles.
Echoing the feelings of many, Brooklyn Rabbi Cantor Sam Levine told The New York Times, “Everyone’s reeling, apart from the disgusting politics that have been wrapped up in her death.” Levine is with the East Midwood Jewish Center, where RBG attended Hebrew school.
“Disgusting” describes the Republican response. When she died on Friday, McConnell in short order announced that the Senate will vote on a new justice, and the next day Trump pushed Senate Republicans to confirm his nomination “without delay,” the Times reports. They could not wait for RBG’s funeral before issuing pronouncements about the succession process, and they are attempting to confirm a new justice by election day, Nov. 3.
McConnell’s career was set in motion during the constitutional convention in 1787 when delegate William Paterson – then New Jersey’s attorney general – balked at an early proposal for forming a national legislature. He feared that the more populous states would dominate Congress. Paterson’s opposition led to provisions for what we have now – the House of Representatives with proportionate representation and the Senate where each state has two votes, no matter how populous; New Jersey was among the least populous states. Paterson advanced to become New Jersey’s governor and a U.S. Supreme Court justice, and the city of Paterson, N.J., is named after him.
As historians tell it, James Madison and four other delegates were ready to challenge the House-Senate plan, called the Connecticut Compromise, but all other delegates accepted it.
Senate representation now ranges from under 600,000 in Wyoming to 40 million in California. Interestingly, New Jersey is the 11 th most populous state with almost 9 million and McConnell’s state, Kentucky, is 26 th with 4.5 million residents. New Jersey sends billions of dollars more to the federal treasury than it gets back. Is it coincidence that New Jersey is among the most expensive states in which to live?
Democrats fill both Senate seats not only in California, New York and New Jersey but also Massachusetts, Michigan, Virginia, Illinois and other populous states while Republicans hold each seat in states like Wyoming, Idaho and Alaska. Republicans represent fewer populous states, and the result is Senate Democrats usually represent the majority of Americans even when the majority of senators are Republicans.
So McConnell owes his career path to Paterson and the delegates who approved the compromise. When they signed the Constitution on Sept. 17, 1787, most delegates were dissatisfied with the final product. They probably went along with it because it was the best they could get. Madison even defended the Senate composition in the Federalist Papers.
The minority of Americans have another weapon: the Electoral College. It authorizes the election of a president who wins 270 electoral votes, the combination of electoral votes from each state and Washington, D.C. The winner can even lose the popular vote under this system. Neither the younger President Bush in his first election and Trump in 2016 could not take the popular vote.
A few reasons have been cited for voting for electors who would choose the president in lieu of a direct election. Southern delegates were reported to back the Electoral College because it would protect their slave-driven society and increase their political clout. Also, delegates regardless of region were concerned that the average citizen was unfamiliar with qualified candidates because of limited communications.
Slavery ended with the Thirteenth Amendment, and today voters can readily learn about presidential candidates because of our widespread media system. Yet the southern states along with other conservative states still hold a disproportionate advantage.
Critics have long clamored for elimination of the Electoral College because a presidential candidate can lose the popular vote and still move into the White House, as happened with Trump and Bush.
Action on the Electoral College has been limited. The composition of the Senate has been under the public radar, but it has been mentioned on occasion.
Certainly, the college should be eliminated and our legislative system reshaped. What can we do with Congress? A plan is needed to ensure that Congress reflects proportionate representation.
Changing the structure to elect presidents and revamping Congress appears impossible because of how the Constitution is set up. The amendment process itself can swiftly derail any proposal because two-thirds of Congress must approve amendments followed by ratification of three-quarters of the states. The 19th Amendment granting women the right to vote hinged on a single vote in Tennessee’s legislature.
Must we then persist with a system controlled by the minority of Americans? Assembling a more perfect union is always hard. If we do not try our best, do we deserve a full democracy? What would Ruth Bader Ginsburg say?
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Bruce S. Ticker is a freelance columnist based in Philadelphia, Pennsylvania.