Thread by @carltonfwlarson

The Ginsburg vacancy is a perfect storm highlighting the 3 worst features of our constitutional order: (1) the electoral college; (2) equal state suffrage in the Senate; and (3) life tenure for Supreme Court justices. All contribute to the awfulness of this particular moment.(1)

First, despite losing the popular vote by nearly 3 million votes, Trump assumed office by winning the electoral college. No president who lost the popular vote has nominated a Supreme Court justice since the late nineteenth century. (2)

Although George W. Bush lost the popular vote in 2000, he won it in 2004, and his appointments of Roberts and Alito occurred in his second term. (3)

Supreme Court justices have at least some democratic legitimacy by virtue of presidential nomination. But that legitimacy is seriously weakened if the president was not actually preferred by the American people. (4)

Second, the legitimacy problem can be somewhat mitigated by Senate confirmation. Until Trump, every justice nominated by a popular vote loser was confirmed by senators who represented a majority of the American people. (5)

By contrast, the senators who voted against Gorsuch and Kavanaugh represented more people than the senators who voted in favor. (6)

Gorsuch and Kavanaugh thus have the dubious distinction of being nominated by a popular vote loser and confirmed by senators representing only a minority of the American people. More than any other justices, their appointments seem to fail basic tests of democratic legitimacy.(7)

It is likely that this will remain true for Trump’s third appointment. This is a consequence of allocating Senate votes equally to each state, rather than on the basis of population. It's a difficult problem to fix, but nonetheless a flaw in our constitutional order. (8)

Third, life tenure for federal judges allows judges to game the system by timing their retirements, and it makes our constitutional law hinge on idiosyncratic medical issues. (9)

David Souter retired in 2009 at the relatively young age of 69, when Democrats controlled both the presidency and the Senate, allowing for the smooth confirmation of Sonia Sotomayor. By doing so, Souter (a Republican appointee) deliberately handed his seat to the Democrats. (10)

Justice Ginsburg was urged to retire in 2013 when Democrats also controlled the presidency and the Senate. Her failure to do so meant that her retirement would have to wait for that alignment to re-emerge. (11)

But a system that allows this degree of arbitrary retirement timing, or which encourages people to believe that the fate of a nation hinges on one particular person’s medical condition, is not a system of which anyone should be proud. (12)

Far better would be to have staggered eighteen-year terms, with vacancies occurring every two years, so that each president would get two appointments. (12)

I have disliked these features of the American constitutional system for a long time, so I don’t raise this as a partisan point about this particular vacancy. But to see them all collide in this manner is profoundly depressing. (end)