A different kind of March Madness descends upon Washington today as the Senate Judiciary Committee begins Judge Neil Gorsuch’s confirmation hearings. Gorsuch appears to have the votes to be confirmed as the next associate justice of the Supreme Court. The verdict on Judge Gorsuch in the court of public opinion polling, however, has become more mixed since his nomination and reflects the onset of a more partisan atmosphere surrounding SCOTUS nominations in general.
As my colleague Caitlin Reed noted in a blog post last month, initial public opinion on the Gorsuch nomination was positive: the CNN/ORC poll reported 49% of voters favoring Senate confirmation and 36% opposing it. Likewise, Gallup’s February read of the Gorsuch nomination was 45% in favor of confirmation and 32% opposed. The February Fox News poll, too, showed 49% in favor of confirmation and 37% opposed – +13, +13, and +12, respectively.
Using Gallup as our guide, however, Gorsuch’s nomination received slightly below average support from Americans. Excluding the nomination of Justice Stephen Breyer, for which Gallup has no data, the average initial support for Supreme Court nominees from Gorsuch to Clarence Thomas (nine nominees total) is 51%.
- Gorsuch’s initial 45%/32% Gallup score is comparable to Elena Kagan’s (46%/32%).
- Merrick Garland’s was right about average at 52%/29%.
- Fox, however, recently recorded a tightening for Gorsuch: the most recent March poll shows a +6 point advantage for confirming Gorsuch (45%/39%), down six points from its February survey.
As I demonstrate later, Gorsuch’s below average support and the tightening registered by Fox are likely related to increasing partisanship that began in 2009. As a caveat, it is wise to wait for additional surveys to show the same tightening before sweeping conclusions are drawn.
But it wasn’t always the case that members opposite the party of the nominating president were lock-step in opposition to the president’s nominee. Going back to Clarence Thomas’s nomination in 1991 – a contentious nomination in its own right – members of the party opposite the nominating president clearly have reservations about the president’s nominee, but just once did a majority of them oppose confirmation:
- Initial Democratic support for the Thomas nomination was 45%/25%;
- Initial Republican support for Ruth Bader Ginsburg’s nomination was 41%/25%;
- Initial Democratic support for John Roberts’ nomination was 42%/35%; and
- Initial Democratic support for Samuel Alito’s nomination was underwater, but just slightly, at 35%/40%.
The only documented instance from 1991-2006 of a majority of the opposition party opposing a nominee was the unusual case of Harriet Miers, George W. Bush’s doomed second nominee to the court. In that case, 53% of Democrats opposed confirming Miers.
For whatever reason, the election of President Obama in 2008 ushered in a seemingly more partisan era of SCOTUS nominations. The relatively “low” score for Gorsuch recorded by Fox last week (45%/39%) may be part and parcel of this “new normal” for nominees to the high court. Beginning with Obama’s first nominee to the court in 2009, Sonia Sotomayor, each of the last four SCOTUS nominees have registered a majority in opposing confirmation among the opposite party:
- Initial Republican support for Sotomayor’s nomination was 24%/57%;
- Initial Republican support for Elena Kagan’s nomination was 26%/51%;
- Initial Republican support for Merrick Garland’s doomed nomination was 33%/51%; and
- Initial Democratic support for Gorsuch’s nomination stands at 21%/57%.
The unusual circumstances surrounding Merrick Garland’s nomination and Senate Republicans’ refusal to hold hearings or a vote have likely amped up Democratic opposition to Gorsuch, thus solidifying the partisan trend that has taken hold since 2009.
As Gorsuch’s confirmation hearings commence, surveys are likely to register a slight rise in opposition overall as the nominee’s views are further elucidated and defined. See the chart below:
Two things appear likely: that Judge Gorsuch will become Justice Gorsuch, and future SCOTUS nominees are likely to continue to record below average support overall and majority opposition among members of the other party.