Statistically, conservatives are a small minority of all Americans. Yet, conservatives have packed the US Federal Courts. Therefore, we currently have a Supreme Court, Appeals Courts and Federal District courts that do not reflect the will of the American people as reflected by the number of votes going to Presidential candidates. This column will explore how that happened.

As of June, only 27% of Americans identified themselves as conservative, whereas liberals were 26%. The remainder were moderates, the largest grouping

However, of the total federal judiciary currently serving, 48% of appointments were made by just two conservative Presidents, W and Trump. A closer look reveals that of the current Courts of Appeal, 96 were appointed by Republicans and only 81 by Democrats. Of these, Trump appointed 53 in his one term and W 32 in his two terms. Both of these Presidents lost the popular vote.

Of the 6 conservative SCOTUS members, only Clarence Thomas was appointed by a President (Bush Senior) who won the popular vote. W and Trump… abetted by a Senate dominated by the less populated states… appointed the majority of the current Supreme Court, packing it with 5 more ideological conservatives. By definition, they do not reflect the will of the American people as reflected in the Presidential popular vote.

Let’s examine the conservative demographic more closely. Of those surveyed by Gallup, 73% of Republicans were conservative versus only 11% of Democrats. There are also substantial racial differences, with 38% of whites being conservative versus 31% of Latinos and only 22% of blacks.

But politically speaking the most important difference is the divide between rural and other areas. In rural counties and small towns, nearly twice as many people are conservative (43%) as liberal (22%). And that fact has given conservatives excessive power far beyond their numbers.

Compare any two rural and urban states. Rural Wyoming has 563,000 people. New York, an urban state, has 19.4 million residents. In other words, the population of Wyoming is 3% of New York’s.

Yet, they both get the same number of Senators, who approve Supreme Court nominations and Federal judges among other things. And under our Constitution, Wyoming and other rural states also get a disproportionately large number of electors for President (for details about this archaic process, see Article II, Section 1, Clauses 2 and 3 of the Constitution). Therefore, these smaller states indirectly call the shots when it comes to picking Federal judges, very often contrary to the will of the majority of Americans. For example, Mitch McConnell’s GOP Senators prevented Obama from 100 filling court vacancies. So, when Trump was elected with a minority of the popular vote, he immediately filled these court seats and many others (a total of 173 District Court and 54 Appeals Court positions).

W (Bush) had fewer votes than Gore. Trump had less votes than Clinton. Yet, due to its unique, outmoded structure which gives rural states a disproportionate Electoral College vote, the Electoral College chose the candidates with fewer popular votes. The democratic concepts of weighing each vote equally and the will of the people be damned.

Obviously, the Founding Fathers had little faith in the uneducated 18th Century common man (and none in women, prohibited from voting). Otherwise, we would not have a Senate constructed like it is, ignoring the democratic principle of one person one vote. Or an Electoral College so obtuse that the average voter doesn’t even understand the basics about how the number of electors is determined for each state or how these electors are actually chosen.

The extent of the difficulty in changing this archaic system of government is not obvious to most Americans. Under Article V, to amend the Constitution the House of Representatives and the Senate must both approve the proposed Amendment, in each case by at least a 2/3rds vote. Or 2/3rds of our US State legislatures must vote to create a Constitutional Convention to consider the Amendment. In either case, Amendments must be ratified by three-fourths of the States (i.e., 38 States).

What is the best solution? Obviously, amending Article 5 to make changing the Constitution easier. But because the Founding Fathers had little trust in American voters, Article V itself is extremely difficult to amend per the above.

A less satisfactory immediate remedy is to amend the Constitution to select a number of Senators for each state equal to its population. In other words, Wyoming would have 1 Senator and New York would have 33.

Are these constitutional amendments likely to be approved? No, and that’s our American dilemma because without them we will never have a true democracy.

So, in the meantime, what can be done? The number of judges at every level (SCOTUS, Appeals, District) can be expanded by Congress, which is controlled by Democrats. That’s what was done when Carter was President, enabling him to appoint 262 judges even though he was in office for only one term.

The GOP has always had the wrong policies, but aggressive strategies. They have disregarded unity in favor of legislative success. The Democrats have always had much better policies, but weak implementation due to innate hesitancy to use their power. In the next year, we will see if Biden is able to accomplish anything at all legislatively via his calls for unity. I have major doubts, as I did when Barack Obama called for unity in passing healthcare reform.


Image Credit: the feature caricature of the Scales of Justice was created by DonkeyHotey (Flickr/Creative Commons).

Jack Bernard

Jack Bernard

Jack A Bernard is a retired SVP with a national healthcare corporation. He was Chair of the Jasper County, Ga Board of Commissioners and Republican Party. He was also on the Board of Health for Jasper County and is currently on the Fayette County BOH. Bernard has over 100 columns published annually, primarily in the South.