Why popular opinion doesn't count in the Senate's Kavanaugh confirmation vote

Even before Thursday's explosive Senate hearing, polls showed a majority of Americans had already turned against President Donald Trump's Supreme Court nominee Brett Kavanaugh.

But when it comes to matters before the Senate, popular opinion doesn't count. By design, the founders gave states with small populations the same weight as big states in the deliberative body. Proportional representation was left to the House.

On Thursday, Kavanaugh's nomination was the subject of nearly nine hours of dramatic, emotional testimony before the Senate Judiciary Committee from Kavanaugh and Christine Blasey Ford, the woman who has accused him of sexually assaulting her when they were high school students in Maryland in 1982.

The drama continued Friday after several Democrats on the committee walked out of a hearing on the nomination. Kamala Harris of California, Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut and Sheldon Whitehouse of Rhode Island left after the GOP chairman set a vote on the nomination for 1:30 p.m. Friday. The motion was approved by a committee vote.

During that vote, Hirono shouted: "I strongly object! What a railroad job! No, no, NO."

Opinion polls show that American voters are also sharply divided on the issue. But a greater share oppose the nomination than support it, according to a series of polls leading up to Thursday's hearing.

In fact, support for Kavanaugh is lower than past nominees for the high court, according to survey research from Gallup. Only Harriet Miers, whose 2005 nomination by President George W. Bush was withdrawn, faced greater public opposition than support.

Despite weak public support, Kavanaugh will be confirmed if the final vote is made along strictly party lines. Republicans control a slim majority of 51 votes in the chamber. The nomination requires only a simple majority for approval.

Based on the makeup of the U.S. Senate, though, Republicans represent a minority of American voters. When apportioned by population, those 51 Republicans represent states with roughly 145.5 million Americans, while the 47 Democrats and 2 independents represent states with 179.5 million. (The same is not true of the House, where congressional districts are redrawn every 10 years based on the latest census data.)

With the Senate so evenly divided, the fate of Kavanagh's confirmation rests with a handful of undecided senators, including three Republicans and a Democrat who reportedly met Thursday night to compare notes about which way they would vote. Those four Senators – Republicans Lisa Murkowski of Alaska, Jeff Flake of Arizona, Susan Collins of Maine and Democrat Joe Manchin of West Virginia — represent relatively small states.

That means the ultimate decision may now rest with senators representing less than 4 percent of the U.S. population.

Correction: This story was updated to reflect the correct number of Republicans and Democratic senators who met Thursday night.


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