A 2020 Supreme Court Nominee Should Get Hearing, Poll Shows

Oct. 21, 2019, 6:36 PM

The Senate should consider a nominee to the U.S. Supreme Court if a vacancy opens during 2020 even though it’s a presidential election year, a strong majority of survey respondents identifying with the two major political parties said.

The nationwide poll, conducted for Marquette University Law School and released Oct. 21, surveyed the public’s understanding and opinion of the high court with a handful of questions focusing on the hot-button issue of an election-year appointment.

The results showed that 73% of adults surveyed disapproved of Senate Majority Leader Mitch McConnell’s refusal in 2016 to hold hearings in the Republican-led chamber for Merrick Garland. He was nominated in March of that year by Barack Obama to replace the late Antonin Scalia. But because it was an election year and Obama was due to leave office, McConnell said the next president should put forward the nomination.

A majority of Republicans included in the overall response, 55%, said McConnell’s decision was wrong even though the political gamble paid off for the party. President Donald Trump appointed Neil Gorsuch the next year to fill Scalia’s seat.

And while the treatment of Garland and the prospect of another Supreme Court nominee by Trump to further strengthen the conservative majority frustrates Democrats on Capitol Hill and on the campaign trail, a strong majority of Democrats participating in the Marquette poll, 63%, would support hearings along with 72% percent of Republicans.

No justice has indicated any plans to retire over the next year, but both Justices Ruth Bader Ginsburg and Stephen Breyer from the progressive side of the bench are over 80. Ginsburg’s health is a reoccurring concern due to cancer scares.

The poll was conducted from early to mid-September and surveyed 1,423 adults nationwide.

No Partisan Consideration

Only 38% of those surveyed thought it would be permissible to reject a qualified Supreme Court nominee because of how they might vote on contentious issues like abortion and gun control. Even fewer—just 19%—thought political affiliation was a proper consideration.

The poll also showed that 57% of adults surveyed said the judiciary was the most trusted branch. Congress and the president were neck and neck at 22% and 21%, respectively.

But Republicans had a higher confidence level in the Supreme Court overall. Fifty-four percent of Republicans had high confidence in the court, compared to just 34% of Democrats.

Republicans and Democrats were split on whether the membership of the Supreme Court should be expanded to include more justices. Fifty percent of Democrats favored expanding the court, while just 31% of Republicans did.

The issue has come up among some Democratic candidates on the 2020 campaign trail in response to questions about the potential impact of the court’s conservative majority on issues like abortion and gun control.

Both survey groups strongly favored limiting life tenure for justices—69% for Republicans and 75% for Democrats.

Justice Unrecognized

Still, one of the court’s longest serving justices, Ginsburg, was the most recognizable.

Recognition among the justices varied significantly. Those surveyed were asked to rate each one’s performance. But 84% either didn’t know or didn’t have enough information about Breyer to rate his performance. Only 41% couldn’t do so for Ginsburg.

Justice Brett Kavanaugh, the newest justice, and the second appointed by Trump was a close second, with just 42% unable to rate him following his bitter confirmation battle.

The only other justice who was known by more than half of the respondents was Clarence Thomas, who squeaked by with just 49% unable to rate his performance.

Twenty-eight percent of those asked couldn’t name any of the justices.

Future Rulings

More than half of those surveyed agreed with the court’s rulings recognizing the right of same-sex couples to marry—56%—and the right to own a firearm for personal protection—67%.

The court’s rulings on corporate and union spending in elections and race in college admissions fared far worse. Just 14% favored election spending and 15% affirmative action.

The survey also indicated that more than half of respondents don’t want the court to overturn the abortion ruling Roe v. Wade, end protections for “Dreamers,” or allow business to deny service to gay and lesbian couples due to religious objections. Participants similarly said they didn’t want the court to overturn Obamacare or green-light a semi-automatic rifle ban.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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