Democrats have been underrepresented relative to their share of the popular vote in electoral votes and in U.S. Senate seats for the last quarter of a century.
Our 18th century constitution, as it has evolved, in addition to being flawed in how it distorts the will of the people, requires great supermajorities to change the status quo. In a rapidly changing world, this is a big problem.
State and local governments are hampered less by inertia and distortion even though they suffer from it as well. States are also heavily constrained, in practice, by limitations imposes by federal law.
The federal courts, charged with interpreting the status quo in a system that is usually gridlocked, and with maintaining the line between the authority of a gridlocked national government and a somewhat less gridlocked assortment of state and local governments that often act imprudently. They are vested with great power as a result.
The federal courts, in turn, are ultimately at the direction of the U.S. Supreme Courts, whose politicized membership is prone to drifting out of synch with a reasonable vision for the nation due to the crude means by which it is selected, and it has done so.
Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population. Of course, in most cases, it is unlikely that the smallest states would all band together to filibuster because some small states predominantly elect Democratic senators and others predominantly elect Republicans. But the problem is not alleviated by taking into consideration the partisan leanings of states.For example, the 21 least-populous states currently represented by two Republican senators—enough to sustain a filibuster—represent less than 25 percent of the U.S. population. Democrats currently have two senators in 18 states, and those states represent about 41 percent of the U.S. population.
If you include five additional Democrats from the least populous states that have one Democratic senator—enough to sustain a filibuster—then they would represent about 46 percent of the population. Also, consider that many voters do not support the winning candidate in their state. The implication is that, at any time, a very small percentage of the population can elect enough senators to block the will of a much larger majority of Americans.
For most of its history (from the same source), the filibuster has been used almost exclusively to block civil rights legislation:
For almost 50 years after the adoption of the new rules [in 1917], cloture votes to end debate were exceedingly rare. The one issue for which the filibuster proved a major obstacle in the decades that followed was civil rights. From the late 1920s through the 1960s, the filibuster was primarily used by Southern senators to block legislation that would have protected civil rights —anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting. These anti-civil rights filibusters were often justified with “inflated rhetoric about an alleged Senate tradition of respecting minority rights and the value of extended debate on issues of great importance.” But belying this rhetoric, conservatives during this period generally refrained from engaging in filibusters on issues other than civil rights.
In November 2013, Senate Democrats led by Harry Reid used the nuclear option to eliminate the three-fifths vote rule on executive branch nominations and federal judicial appointments.
In April 2017, Senate Republicans led by Mitch McConnell extended the nuclear option to Supreme Court nominations in order to end debate on the nomination of Neil Gorsuch. As of March 2021, a three-fifths majority vote is still required to end debates on legislation.
While the Democrats in the U.S. Senate have the 50 seats and Vice Presidential tie vote needed to abolish the filibuster (and can pass fiscal budget reconciliation measures by a majority vote), two members of the Democratic caucus, Joe Manchin III of West Virginia and Krysten Sinema of Arizona, have publicly stated that they are unwilling to do so.
Later legislation increased its size to seven members in 1807, to nine in 1837, and to ten in 1863. An 1866 act was to have reduced the Court's size from ten members to seven upon its next three vacancies, and two vacancies did occur during this period. However, before a third vacancy occurred, the Judiciary Act of 1869 intervened, restoring the Court's size to nine members, where it has remained since.
On April 6, 2017, Senate Republicans invoked the nuclear option to remove the Supreme Court exception created in 2013. This was after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States, after the Senate Republicans had previously refused to take up Merrick Garland's nomination by President Obama in 2016.
Of the nine U.S. Supreme Court Justices seated between August 3, 1994 and May 2005, six were confirmed with the support of ninety or more Senators, two were confirmed with at least the support of sixty senators, and only one (Clarence Thomas) was confirmed with the support of fewer than sixty Senators.
Since John Roberts was confirmed, all nominees of Democratic Presidents have received more than 60 confirmation votes, while no nominees of Republican Presidents have received more than 58 votes.
Federal Court of Appeal And District Court Judges
The ideological makeup of the federal courts of appeal vary from one federal appellate court circuit to another. This is in large part because Senators whose states are within a circuit have been given special privileges regarding these appointments for most of the time period in which the currently sitting U.S. Court of Appeal judges have been appointed. This privilege has been reduced in potency, but not completely eliminated, in recent years. So, our federal appellate cases have a red state, blue state divide that encourages circuit splits that prompt the U.S. Supreme Court to revolve them or to tolerate lack of uniformity in federal law, rather than minimizing division within the intermediate federal appellate courts that could allow the U.S. Supreme Court to allow key issues to be worked out without its intervention at the level of lower courts.
At the District Court level, the U.S. Senate has long afforded each of the Senators from a state veto power over nominations to U.S. District Courts in their states. But a series of skirmishes from 2005 to 2020 have turned federal judicial nominations into a scorched earth battlefield.
The maneuver [of filibustering a judicial appointment] was brought to prominence in 2005 when Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances. Several of the blocked nominees were brought to the floor, voted upon and approved as specified in the agreement, and others were dropped and did not come up for a vote, as implied by the agreement. . . .
Prior to November 21, 2013, in the entire history of the nation there had been only 168 cloture motions filed (or reconsidered) with regard to nominations. Nearly half of them (82) had been during the Obama Administration, but those cloture motions were often filed merely to speed things along, rather than in response to any filibuster. In contrast, there were just 38 cloture motions on nominations during the preceding eight years under President George W. Bush. Most of those cloture votes successfully ended debate, and therefore most of those nominees cleared the hurdle. Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush's 35 out of 52.Regarding Obama's federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush's first term 170 of 179, Bill Clinton's first term 170 of 198, and George H.W. Bush's 150 of 195. Filibusters were used on 20 Obama nominations to U.S. District Court positions, but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.
Conservative nominees for Appellate Courts that were given a vote through the "Gang of 14" were confirmed almost exclusively along party lines: Priscilla Owen was confirmed 55–43, Janice Rogers Brown was confirmed 56–43, and William Pryor was confirmed 53–45.
Our courts are new full of conservative judges far from the mainstream legal world picked for their activism rather than their wisdom, competence, or adherence to mainstream jurisprudence.
The State Legislative Process
Every U.S. state except Nebraska has a bicameral state legislature with members elected on a partisan basis and dominated by the two major political parties, the Democrats and the Republicans, with a smaller upper house (often elected to longer terms of office) and a larger lower house (usually elected to two year terms). In both houses all senators and representatives are elected from equal population single member districts that are redrawn every ten years following the federally conducted decennial census. Nebraska has a unicameral state legislature with members elected on a formally non-partisan basis from single member districts (in practice, the members elected strongly lean towards one or the other major political parties and the majority party has been the Republican party for a long time).
State legislatures generally don't have a counterpart to the filibuster or other special privileges of U.S. Senators to prevent legislation or nominations from going forward, and in many state legislatures, senators and representatives are subject to term limits (which both houses of Congress at the federal level lack).
State governors almost always have a veto power that is a counterpart to the federal one, and when it is exercised, a state governor's veto is likewise very rarely successfully overturned by two-thirds majorities of both houses of the state legislature. But it is much more common for a state to have both houses of the legislature and the Governor in the hands of the same party, giving rise to a so called "trifecta" than at the national level.
There are several reasons this happens: because individual states are more ideologically homogeneous, because incumbency advantages while real are weaker, and because the fact that both the state senate and state house are based upon equal population districts with terms that are more similar in duration to each other reduces the likelihood that there were be big differences in partisan proportions between the two houses of a bicameral legislature.
Historically, the single member districts have been drawn by the legislatures, and this has been done on a partisan basis when both houses are controlled by the same party resulting in significant gerrymandering, favoring one party or the other in both races for the U.S. House and for state legislative races. State legislatures also adopt laws governing election administration in a manner that favors the party in control, and elections are mostly administered in the U.S. by partisan elected officials at both the state and the country level.
Recently, some states have transferred the redistricting role for some or all districts to bipartisan independent commissions, which tend to make redrawn districts less incumbent friendly and to make districts more competitive and hence more prone to partisan flips at general elections.
The bottom line is that while there are incumbency advantages, they are much weaker at the state and local level in partisan offices than at the federal level. In part, it is also a function of the much more limited media attention that state and local elected officials receive on salient issues.
As a result, state and local elected officials are strongly influenced by coattails from the top of the ticket races, even though it has no direct connection to their own races, and have weaker incumbency benefits.
Also, it is rare for state senators or statewide elected officials to have terms of longer than four years, unlike the six year term of U.S. Senators.
So, as a practical matter, it is much easier for a shift in grassroots political sentiment to lead to a change in control of the state legislative process, or a change in the partisan leanings of local elected officials relatively quickly, than it is to do so at the national level. And, it is more common for shifts in grassroots political sentiment to occur within a single state than it is to do so nationally due to the greater ideological homogeneity of individual states (especially smaller states).
State Constitutional Amendments
It is also much easier for states to amend their constitutions than for the federal government to do so.
In states where it is harder to amend the state constitution, constitutional amendments can usually be proposed by a two-thirds majority of each house of the state legislature, and then ratified, either by a majority or mild supermajority vote of the voters at a general election, or by a majority of both houses or supermajority in a successive legislative session.
In many states, it is also possible to amend the state constitution by having citizens present petitions with a requisite number of signatures to the state's secretary of state, which if sufficient, places a proposed constitutional amendment on the ballot for voters to approve or reject, either by a majority vote or a mild supermajority vote.
Less obviously, achieving consensus around a proposed constitutional amendment is also easier because the ideological range of a required ideological majority or two-thirds majority in a single state is often much narrower than for the United States as a whole. While many U.S. states have two competitive political parties that are on relatively comparable footing, many other U.S. states have one dominant political party for a long period of time.
Political Parties In State Politics
Ordinarily, political theory would expect that coalitions of factions in a state with a dominant political party would realign to bring the parties closer to an even balance. But, in our federal system, where federal law has supremacy over state law, both leading political parties which are moderately integrated at the county, state and federal levels, have prioritized the coalitions they need to win the more important Congressional and Presidential majorities over those that would be optimal at the state and county level.
The natural bias political theory predicts to rebalance political party coalitions so that they can sometimes win elected offices at the state level, or in larger jurisdictions like Congressional districts isn't entirely absent, even though federalism mutes it.
In "Red States" where the Republican party is dominant, moderates are more likely to do the bare minimum to meet the litmus tests to be accepted within the Republican party so that they can be elected, and viable Democratic candidates tend to be much more conservative than other Democrats. Joe Manchin, a Democrat elected to the statewide U.S. Senate seat and previous other statewide offices in West Virginia which supported President Trump in 2016 and 2020 by larger margins than in almost any other U.S. state is a prime example of this phenomena.
Likewise, in "Blue States" where the Democratic party is dominant, moderates are more likely to do the bare minimum to meet the litmus tests to be accepted within the Democratic party so that they can be elected, and viable Republican candidates are much more moderate than other Republicans. Mitt Romney, who was the Governor of liberal Massachusetts and adopted the expansive health care program that became the model for the Democratic party's Obamacare legislation is an example of one such Republican.
Also, in states where a candidate is running on the ticket of the non-dominant party, the candidate more often runs for executive branch positions, where there is less blatant partisan legislative authority, rather than for powerful legislative posts. Republicans in blue states tend to run for Governor or Treasurer or District Attorney or Sheriff or Coroner. Democrats in red states tend to do the same thing, in either case, presenting themselves as fairly independent individuals with strong likable personalities.
Some states are adopting elections reforms to reduce the systemic bias in favor of a two party system and to make it easier to elect moderates than the status quo. No true proportional representation systems have made much progress.
Every state, like the federal government, has an independent judiciary, but generally speaking, state court judges are somewhat easier to remove from office than federal judges. Many states have mandatory retirement ages for judges, and I believe that a small number have term limits for judges. Most states allow judges to be impeached although this is almost as rare at the state level as it is at the federal level. The power of judicial ethicals officials to remove state court judges from office is usually substantial, while federal judicial ethics officials are mostly toothless. And, many states have a significant share of judges who are elected, are subject to retention elections, or are subject to recall elections. All of these ballot box remedies as a practical matter don't cause many judges to leave office outside of high profile scandals or significant turns in the political tides or very unpopular judicial decisions. But state court judges are removed from office in this fashion much more often than they are impeached, and at least as often as they are removed or persuaded to resign by judicial ethics officials. Some state court judges are nominated by political parties in the electoral process, some are political appointees in a process that mirrors the federal judicial appointment process with a Governor's nomination and a state senate's approval of the nomination, and some undergo a merit based job application process similar to that of other senior civil servants who are not political appointees with a Governor choosing only from three or so finalists presented by the people in the merit based vetting process.
Since the status quo is weaker in the state legislative process, however, there is less of an incentive to act through regulations rather than legislation at the state and local level, and that ability of the legislature to pass new laws more easily to address outstanding concerns that the courts would otherwise have to address, reduces the important of the courts from a policy perspective because their power to adjudicate the nature of the status quo is less important. Further, state courts in the U.S. receive, for a variety of reasons, a much larger share of the politically relatively uncontroversial private law cases for unpaid bills and common accidents, while the federal courts have a much larger share of their dockets devoted to politically sensitive public law cases.
Federalism And The Power Of The Federal Judges
There are tensions that arise, however, between the hard to change, but sometimes dramatic when it does change, federal law, which is supreme over state and local law and for all practical purposes can legislate in almost any area that states can despite a formal political theory to the contrary, and state and local laws which are more dynamic because they are easier to change through legislation and state constitutional amendments.
These federal law constraints, because they are so pervasive, however, seriously limit the seemingly plenary power of state governments to legislate and enact policies as they see fit. In practice, they can fill in many details but often have little latitude to make sweeping changes without federal cooperation on most politically sensitive issues.
The power to adjudicate what state and local governments can do in light of federal law constraints both statutory and constitutional, likewise gives federal judges considerable political power, as the sometimes hold back, and sometimes encourage state and local level political innovations.