When the Senate’s hearings on Brett Kavanaugh start Tuesday, senators will formally begin considering the most divisive, contentious Supreme Court nominee in a generation.
Kavanaugh, a federal district judge, veteran of the Starr investigation into Bill Clinton, and starkly conservative jurist, would be the second justice President Trump has placed on the nation’s highest court. All the tea leaves suggest he will be confirmed eventually — even as public polling shows time and again that Kavanaugh is by far the most divisive nominee in a generation.
There are a few likely reasons for Kavanaugh’s unpopularity, most having little to do with the man himself — let’s be honest, how many typical American voters have delved into his record? Polling shows that nearly half of Americans don’t have strong feelings about him. But he was nominated by a historically unpopular president, and his anticipated positions on major issues like abortion have energized the progressive grassroots to oppose him.
And there’s a growing public appreciation that the Supreme Court is often as much a political entity as the presidency or Congress. Confidence in the Court has fallen sharply from where it was a few decades ago, and surveys find that Court nominees have become much more polarizing than they used to be.
Brett Kavanaugh is a very unpopular Supreme Court pick, as it goes
Surveys from several top outlets tell the same story: Americans are harshly split on Kavanaugh’s nomination, to a degree not seen since Robert Bork in the 1980s.
As this Fox News poll shows, the longer Kavanaugh’s nomination has been debated in the public, the stronger that polarization has become.
In July, a plurality said he should be confirmed. Now Americans say — by a single point, so within the margin of error — he shouldn’t be confirmed.
To put that in historical context, CNN found that Kavanaugh had the lowest support for his confirmation since Bork — one of two Supreme Court nominees in the past 30 years who had their nominations withdrawn.
The Pew Research Center found largely the same trend. More Americans said the Senate should not confirm Kavanaugh even than Harriet Miers, the George W. Bush nominee who was withdrawn over concerns about her credentials and experience.
If there is one reason to be cautious about these findings, it’s this survey from the Associated Press and NORC. Those pollsters found that nearly half of Americans didn’t have a strong opinion about Kavanaugh, even as his confirmation would establish a conservative majority on the nation’s high court that could last for decades.
Abortion rights, voting rights, the surveillance state, health care, federal regulations — these are just some of the important issues that will come before the court in the coming years. Yet many Americans don’t seem to care, AP/NORC found:
The Supreme Court has become much more polarized in recent history
In fairness to Kavanaugh, whatever you think of his conservative jurisprudence, his unpopularity is probably less a product of the man himself and more a reflection of deeper trends in how the public feels about the Supreme Court — and the historic unpopularity of the president who nominated him.
This FiveThirtyEight feature sums it up nicely: Supreme Court nominees are simply much more partisan than they used to be.
At this moment, the Supreme Court is enjoying a period of relative popularity (perhaps a reflection of those Republican voters who held their noses to support Trump on the basis of the Court alone), but the long-term trend lines show a body that has become more and more divisive and whose approval often tracks with the prevailing political mood.
A separate Gallup survey, on confidence in America’s public institutions, picks up the same trend going back even further. In the 1980s, more than 50 percent of Americans regularly said that they had a great deal or quite a lot of confidence in the Supreme Court.
That number began to drop during Bill Clinton’s administration but recovered to hit 50 percent again several times in the later Clinton years and the early George W. Bush years. But in the latter part of Bush’s tenure, throughout the Obama administration, and now after 20 months of Trump, confidence in the Supreme Court has been stuck in the mid-30s.
It is probably no coincidence either that the man who nominated Kavanaugh has been, for the most part, the most unpopular president in the first months of his presidency in the past 30 years. Trump’s approval ratings have stayed depressed despite many strong economic indicators — a reflection of just how polarizing his presidency has been.
Still, that deep unpopularity probably won’t be enough to stop Kavanaugh from being confirmed, as long as Republicans cling to their 50-vote Senate majority. When a party holds all the levers of power, they can push through just about any nominee they like — and reshape the American judiciary for the next generation.