Elena Kagan vs. public opinion

While President Obama is undoubtedly pleased that Supreme Court nominee Elena Kagan received unanimous support from Judiciary Committee Democrats today, their support masks Kagan’s historically low popularity across the nation.  For the White House and Senate Democrats, the persistence of Kagan’s low numbers – despite her engaging if not very substantive performance at last month’s hearings – must be both disappointing and puzzling.  For GOP senators and candidates, the nominee’s unpopularity and the issues behind it present a valuable electoral opportunity between now and November.

The simplest explanation for Kagan’s failure to connect with the American people would be the lack of attention paid to her hearings and to Democrats’ recitation of her merits.  But the polls show otherwise.  Rasmussen reported last week that seventy-six percent of Americans are following news reports about the Supreme Court nominee at least somewhat closely, while only 23% are not.

The truth is that Americans don’t like what they see.  Gallup reported last Thursday that:

“If confirmed, Kagan would be the first successful nominee in recent years whose nomination was backed by less than a majority of Americans in the final poll before the Senate confirmation vote.”

The only other modern day Supreme Court nominees with less than majority support were Robert Bork and Harriet Miers.  Bork was defeated on the Senate floor and Miers was forced to withdraw her nomination.

This latest Gallup poll is consistent with the organization’s polls in May and June, as well as with other pollsters’ surveys, all showing that support for Kagan is at the lowest level in recent decades for a nominee headed for confirmation.  It is no accident that Kagan’s confirmation will come with the fewest ‘yes’ votes of any modern Democratic Supreme Court nominee.

Part of the reason for Kagan’s low numbers is likely the failure of Democrats’ efforts to portray her as a moderate.  Instead, Rasmussen reported last week that voters are “more convinced than ever that Kagan is an ideological liberal …  Fifty percent say Kagan is liberal, while 34% view her as a moderate.”

The explanation for Kagan’s unpopularity goes deeper than ideological labels.  At the end of the day, Kagan and her supporters are faced with this inescapable reality: on the issues that have dominated the public debate about her nomination, polls show that Kagan is on the wrong side of the American people by very large margins.

One such issue is gun rights. While clerking for Justice Thurgood Marshall, Kagan wrote that she was “not sympathetic” to finding an individual right to bear arms under the Second Amendment.  Contrast that with a 2009 CNN / Opinion Research poll which found that more than three-quarters of Americans believe the Second Amendment “was intended to give individual Americans the right to keep and bear arms for their own defense.”