Elena Kagan vs. public opinion

Curt Levey Committee For Justice
Font Size:

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.”

One of the biggest controversies during the Kagan confirmation fight has been her pivotal role in the Clinton administration’s successful campaign to prevent a Congressional override after the President vetoed a partial birth abortion ban.  She and the president worried about an override precisely because public opinion is overwhelmingly against this most radical of abortion procedures.  Gallup reports that “Americans have shown overwhelming opposition to partial-birth abortion …  In [a 2007] poll, 72% say such abortions should be illegal, while only 22% say they should be legal.”

No Kagan controversy has topped her decision as dean of Harvard Law School to protest the military’s “Don’t Ask, Don’t Tell” policy by barring military recruiters from using the school’s career services.  That decision has come back to haunt her.  A CNN poll found that Kagan’s ban on military recruiters made Americans less likely, rather than more likely, to support her nomination by a two-to-one margin.

Elena Kagan’s passion about gay rights has sometimes clouded her judgment and legal analysis.  In fact, as U.S. Solicitor General, Kagan failed to vigorously defend the federal Defense of Marriage Act – defining marriage as a union between a man and woman – despite her institutional obligation and promise to senators.  Perhaps Kagan imagines that Americans are coming around to her view on gay marriage.  But Gallup reported last year that “Americans’ views on same-sex marriage have essentially stayed the same in the past year, with a majority of 57% opposed to granting such marriages legal status and 40% in favor.”

Given the expansive view of Congressional power endorsed by Kagan during her hearings last month, she is widely expected to vote to uphold Obamacare when the constitutional challenge to its individual insurance mandate reaches the U.S. Supreme Court.  Again, she’s on the wrong side of public opinion. Rasmussen reported this week that fifty-six percent of voters now favor repeal of the new health care law, while 38% oppose repeal. The numbers are even more lopsided – nearly two-to-one – when looking only at those voters who strongly favor or strongly oppose repeal.

A final example concerns the War on Terror.  While serving as dean, Kagan co-authored a letter to senators demanding that enemy combatants be given access to civilian courts.  American wholeheartedly disagree. Quinnipiac University reported earlier this year that American voters, by a 59 to 35 percent margin, believe 9/11 terrorism suspects should be tried in military rather than civilian courts.  By a still larger margin – 68 to 25 percent – voters say that “terrorism suspects should not receive all of the constitutional protections afforded by a civilian trial.”

These poll results are from nationwide surveys.  In all likelihood, the margins are even more lopsided in red states.  That should worry red state Democratic senators.  At the top of the worried list must be Sen. Blanche Lincoln of Arkansas.  When that state’s voters were asked whether they would be more or less likely to vote for her in November if she supports Kagan, they resoundingly answered “less likely” by more than a two-to-one margin.  The same poll revealed that that the negative reaction to support for Kagan is a result of Kagan’s views on gun rights, military recruiters and Obamacare.

The lesson is clear.  With a large number of Senate Democrats currently representing red states, and most of those senators poised to vote for Elena Kagan, the chasm between Kagan and the American people on a host of hot-button issues presents a valuable electoral opportunity for the GOP.  Only time will tell whether Republican senators and candidates have the will and skill to take advantage of Kagan’s historic unpopularity between now and November.

Curt Levey is Executive Director of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.