The conservative movement’s judicial agenda is extremely unpopular. This is, in part, because the movement recognizes that some of its goals are too politically toxic to advance through the more democratic branches of the federal government, and thus, seeks to implement them through litigation. Congress would have had a difficult time clearing the way for unlimited corporate spending on American elections, or gutting the Voting Rights Act of 1965, or legalizing most forms of political bribery, or hobbling public-sector unions — but the Roberts court had no such trouble.
And yet, historically, the unpopularity of conservative jurisprudence has rarely put a dent in the in the public image of conservative judicial nominees. Democratic voters have traditionally followed the lead of their party’s elites, and judged Republican presidents’ Supreme Court picks on the strength of their professional qualifications, rather than their ideological commitments. John Roberts and Samuel Alito are two of the most radically reactionary Supreme Court justices in our nation’s modern history, and yet both enjoyed overwhelming public support when their nominations were brought before the Senate. Even last year, in our hyperpolarized epoch, when Donald Trump announced his intention to put Neil Gorsuch into Merrick Garland’s rightful Supreme Court seat, 49 percent of Americans said that the Senate should confirm him, while just 36 percent said it should not.
All of which makes this new CNN poll remarkable: A plurality of American voters currently want the Senate to reject Brett Kavanaugh’s nomination to the Supreme Court. In the past three decades, no high court nominee has ever attracted plurality opposition in initial polling — and only Robert Bork suffered a lower level of opening support.
The source of Kavanaugh’s weakness isn’t difficult to discern. As Anthony Kennedy’s replacement (a very conservative judge who happened to moderate on abortion rights), Kavanaugh would ostensibly be the fifth vote for dramatically circumscribing Roe v. Wade’s protections of abortion rights, if not for overturning the decision outright.
Support for overturning Roe is almost universal among Republican elected officials — but it’s an exceedingly marginal position among the public as a whole. A recent poll from NBC News and the Wall Street Journal found 71 percent of American voters believe that Roe v. Wade should remain in place.
And this time, voters aren’t separating their opposition to a conservative justice’s jurisprudence from the question of whether he belongs on the Supreme Court: Just 28 percent of American women want Kavanaugh confirmed (a finding that suggests the justice’s likely views on reproductive rights are influencing his poll numbers).
Whether any of this will matter to Susan Collins, Lisa Murkowski, and red-state Democratic senators remains to be seen. But CNN’s poll suggests that progressives’ efforts to politicize Kavanaugh’s nomination — and spread awareness of its implications for abortion rights — are having some effect.
