In 2018, this extreme partisanship and its detrimental effects were on full display at the Senate confirmation hearing for the then–Supreme Court nominee Brett Kavanaugh. Senators, by nearly the same vote as they acquitted Trump, expedited Kavanaugh’s confirmation and thwarted an investigation into his possible misconduct that would have delayed or derailed it. Similarly, in 2016, a slim majority of Republican senators held no hearings on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, preserving the vacancy for President Trump to fill. In both of these events, Republican partisans sought only to prevail, and would not allow for an independent Senate review and investigation of the sort that Madison would have hoped for. Furthermore, the rabid partisanship of the Senate, which Senator Lisa Murkowski, Republican of Alaska, denounced in her statement explaining her vote to acquit Trump, is all the more disturbing because the thin majority of the Senate that stalled Garland, confirmed Kavanaugh, and voted to hear no witnesses and not to seek further document production in the Trump trial represents less than half of the American electorate.
The second is the rise of the internet and social media, which has upended the information ecosystem that democracy needs to survive. Madison was one of many Framers who believed that the intricate system of checks and balances in the Constitution depended on the public’s growing interest in being informed about government. He wrote, “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom.” The proliferation of media outlets online enables people to consult news sources that hew to their opinions, but has not forced them to confront different opinions or search for any objective truth. This tendency, in turn, reinforces the extreme partisanship that pushes people back into their niche—and to so-called facts that are shaped by news sources rather than the events themselves.
Maya Wiley: This is a trial of the Constitution itself
The third development is the major change to the process for selecting senators. When the Framers created the Senate, they sought to insulate it from the vicissitudes of public opinion. To do so, they proposed that senators be selected by state legislators. This approach, however, rarely produced a Senate disposed to take the long view and to rise above petty partisanship. In 1913, the Seventeenth Amendment did away with the original scheme for selecting senators, and people have been voting directly for them ever since.
Shortly before he died, Justice Antonin Scalia lamented that change, saying the amendment had killed federalism, the constitutional ideal of the states and federal government keeping each other in check. Even if the late justice’s concern was hyperbolic, it is true that the Senate has since become more like the House, its members primarily attuned to the need for reelection and to follow the whims or attitudes of popular majorities. The fallout from these changes has been the erosion of the Senate’s independence from presidential and party or factional control.