Last week’s polling wasn’t great either, you may recall. I continue to believe, as I said there, that tepid views of Kavanaugh have nothing to do with the man himself or his qualifications and everything to do with Supreme Court politics. Among the reasons the public is skittish: His replacing Kennedy represents a meaningful ideological shift on the Court, something it hasn’t seen in years; there’s still lots of residual left-wing anger over the GOP’s blocking of Merrick Garland, embittering opponents; Supreme Court fights have only gotten more divisive over time, making tepid approval more likely as a baseline; and Trump may have inadvertently weakened Republican support for Kavanaugh by touting contenders like Amy Coney Barrett preferred by the base. None of it means he isn’t a stellar pick or is unlikely to be confirmed. If I’m right that weak support for Kavanaugh is structural, in fact, you’re left to wonder where it might be for a more divisive cultural figure like Barrett. Would she have started off better or worse in the polls than he has?
Either way, the numbers are what they are, and what they are is consistently weaker than what they were for Gorsuch. Hitting a major pothole on the way to confirmation might bust the axle on this vehicle. From Gallup:
As you can see, dating back 30 years to Bork, the average support for confirming a nominee is +23. Even as nomination fights have grown more contentious over time, no successfully confirmed nominee has been lower than +13. Even Harriet Miers managed +8, a number reduced by the fact that she had critics on the right as well as the left. Kavanaugh is looking at a straightforward left/right party-line divide — yet he’s at just +4. Among Democrats he scores 14/67, fully 17 net points lower than Gorsuch scored among them last year at 21/57. (Among Republicans he scores slightly higher, 76/9 versus 76/11, which calls into question the theory that there are Barrett fans out there still grumpy about Kavanaugh’s selection.) Democrats are down on him due to Roe jitters, I suspect, something that would accompany the nomination of any conservative offered to replace Kennedy. But they’re a fact of political life.
Pew’s new numbers on Kavanaugh are nearly identical to Gallup’s at 41/36 in favor of confirmation, or +5. Among the seven previous nominees, the only one who scored less than +12 was Harriet Miers, who still managed to outscore Kavanaugh at +6. Once again, Kavanaugh has robust Republican support (although not as robust as Gorsuch’s) and *very* robust Democratic opposition:
Pew drew an interesting comparison between Kavanaugh and Kennedy in 2018 and Alito and O’Connor in 2005, which is a fair analogy. In each case, a nominee perceived as dogmatically conservative had been tapped to replace a less predictable Republican who had voted to uphold Roe in the Casey decision in 1992. Just as Kavanaugh’s confirmation is seen as dicier than the last justice who was confirmed before him, so was Alito’s: John Roberts was confirmed easily (78-22) because he was replacing someone in Rehnquist who was similar to him ideologically, but because Alito was perceived as shifting the Court right, his confirmation vote was tighter at 58-42 — the lowest since Clarence Thomas in 1991 and the lowest until Gorsuch last year. Even so, notes Pew, Democrats at the time viewed Alito as less extreme ideologically than they view Kavanaugh. Just 35 percent called Alito “too conservative” in 2005; today 53 percent say the same of Kavanaugh. It’s not Barrett-boosters on the right who are killing his polling, it’s lefties who are likely viewing him under the abortion microscope — another reason to wonder if Barrett might actually poll worse.
But maybe not. There are intangibles that go into this too, of course. Barrett is younger, has a compelling family story, and of course would have been the first woman nominated by a Republican since Miers and potentially only the second woman nominated by a Republican to ever be confirmed after O’Connor. Maybe that would have taken the edge off of Democratic opposition. Kavanaugh is “straight out of central casting” as a nominee both for the president and for his enemies — he’s Yale-educated and held in high regard by the Republican legal movers-and-shakers but also every inch the middle-aged Federalist Society white guy. He fits an archetype that Democrats already hate to a T. Maybe Barrett would have polled better after all.
In lieu of an exit question, enjoy the new trailer for the Ruth Bader Ginsburg movie in which RBG notes that the word “freedom” isn’t mentioned in the Constitution (which is only true until you get to the First Amendment). Sounds like something she’d say!