[Vision2020] SCOTUS "Disequilibrium" on "Open Mind:" Dems. won plurality or majority of presidential popular vote in last 6 of 7 elections

Ted Moffett starbliss at gmail.com
Mon Nov 26 22:42:54 PST 2018

Vision2020 Post: Ted Moffett
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When I heard the claim in the subject heading, I had to pause for a
moment... Given two B. Clinton terms, two G. W Bush terms, two Obama terms,
and one Trump... Well, I guess this is obvious.  What is incredible about
this is of course that twice in this period the republicans gained the
presidency while losing the popular vote, with Gore and H Clinton popular
vote wins.

This has slanted the SCOTUS toward republican presidential appointments,
despite the voters choosing democratic presidential candidates in 6 of the
last 7 elections, especially given the blocking of Obama nominee Merrick
Garland, who should have taken a SCOTUS seat!

G. W. Bush appointed Roberts and Alito in 2005, though he won the popular
vote in 2004.  However, if Al Gore had assumed the presidency in 2000,
based on the popular vote win, it is questionable G. W Bush would have been
elected president in 2004.  Thus these two G. W. Bush appointments still
are arguably based in part on a presidential "win" against the popular vote.

Trump has nominated Gorsuch and Kavanaugh.  Ruth Bader Ginsberg, to pick a
likely vacancy before 2000, may allow Trump another SCOTUS nominee.  It is
obvious this outcome could slant the politics of the SCOTUS potentially for

This episode of the Alexander Heffner hosted Open Mind on PBS television is
at the website below,   The fact in the subject heading as clarified by
professor Pozen is copied below from the transcript of this episode:

David Pozen
Disequilibrium on the Supreme Court

Air Date: November 19, 2018
David Pozen, Knight First Amendment Institute inaugural scholar and
Columbia Law professor, discusses the future of American law.

POZEN: Well, first I’d say on the question of what is equilibrium, there
are a lot of ways to think about that, but I do think there’s a strong case
to be made, that we’re out of equilibrium in the sense that the Court’s
composition doesn’t reflect the composition of the political branches in
recent decades. The last time that a majority of the justices on the Court
were appointed by a Democratic president was May in 1969. So we’re about to
hit five decades straight of Republican President dominated courts. I
believe 15 of the last 19 justices have been appointed by Republican
presidents. And that’s in a 49-year window in which there have been five
Democratic presidencies. The Senate’s been controlled by Democrats, more
than half of the time, Democratic presidential candidates have won a
plurality or majority of the popular vote in six of the last seven
elections. So, that sense of being out of equilibrium reflects these, these
stubborn facts, these difficult facts about the Court’s politics vis a vis
the countries and I haven’t even mentioned other factors such as after
Justice Scalia died, holding open his seat for more than 11 months prior to
President Trump’s inauguration, denying the Merrick Garland nomination even
a chance at a hearing. So, I sympathize with the distress on the liberal
side that something is out of equilibrium. Getting back to equilibrium is a
very hard question.
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