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Oppenheim: Imbalance Not Healthy


The United States Supreme Court leads the third branch of our government, and in its best moments, it’s been a place where people with less access to opportunity have gained a better footing in our society.

The nomination of Brett Kavanaugh comes at a critical time, not only because he’d replace Anthony Kennedy, the court’s swing vote - but also because our national politics have become profoundly lopsided and unrepresentative. And the Supreme Court is where we address problems with how we elect our leaders and voting rights.

In 2016, Donald Trump beat Hillary Clinton solidly in the Electoral College - 306 to 242. But Clinton got nearly 3 million more votes – and Trump’s victory came down to just 80-thousand votes in three states. If Clinton had won, instead of the 5-4 conservative majority on the court we’ll have now, there’d likely be a 6-3 tilt toward the liberals. And either way, such a profound imbalance isn’t good for the court or for our national politics - but beginning with the big wave midterm election in 2010, the GOP has really been the party in power, now dominating legislatures in 31 states.

In 2012 and 2016, Republicans gained substantial seats in Congress despite getting fewer votes – partly due to gerrymandering and partly because of suppressing voting rights. Both are critical issues where conservatives have been holding sway, particularly before the Supreme Court.

Brett Kavanaugh’s record suggests he’ll continue that trend. In 2012, Judge Kavanaugh upheld a law requiring voters in South Carolina to show government issued photo IDs, a decision said to have diminished turn-out of minorities. In 2000, Kavanaugh worked on the legal team for candidate George W. Bush to stop the voter recount in Florida.

It’s expected that Kavanaugh’s confirmation hearings will look at hot button cases like Roe V. Wade, where again, public opinion stands in sharp contrast to the trend of legally restricting abortions. And discrepancies like that suggest a system where voter beliefs – and government actions – are not aligned.

Gaps like that - between what we think and what we do - underscore why the judiciary committee must drill down on Judge Kavanaugh’s views on voting rights. Deciding whether we strive to include more voters in our electoral process – or disenfranchise them - may ultimately determine whether or not our future will include a truly functioning democracy.