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Kavanaugh: Roe v. Wade is 'entitled to respect'

During his Supreme Court nominee hearing, Brett Kavanaugh said that Roe v. Wade is "entitled to respect," adding that he understands the passion around the decision.

Posted: Sep 6, 2018 1:59 PM
Updated: Sep 6, 2018 2:23 PM

Judge Brett Kavanaugh is one of the least popular Supreme Court nominees of all time. But as long as his popularity ratings don't drop dramatically, he's likely to get confirmed.

Recent polling shows that Americans are split on whether Kavanaugh should be confirmed. The most recent Gallup poll found 40% believe he should be and 36% are opposed. The split was even closer in an ABC News/Washington Post poll at 38% for confirmation and 39% against it.

Usually, Supreme Court nominees are well liked even after intense confirmation hearings. Just after Kavanaugh was announced, I collected the final popularity ratings for all Supreme Court nominees since Robert Bork before their confirmation vote or withdrawal. (No poll was taken about Anthony Kennedy.)

The average net approval or favorability rating for these nominees was 20 percentage points.

Kavanaugh's net favorabilty rating is just above zero right now. No nominee who was as unpopular as Kavanaugh is currently has been confirmed in the modern era. Harriet Miers withdrew her nomination after being chosen by President George W. Bush, while Bork was voted down after being nominated by President Ronald Reagan.

Kavanaugh's low popularity certainly limits his potential to grab Democratic votes. Once we control for factors such as a nominee's qualifications and her or his ideological distance from each senator, a nominee's popularity has impacted how many votes they receive for confirmation. One of President George H.W. Bush's picks, Clarence Thomas, for example, probably wouldn't have been confirmed without his strong popularity ratings.

The problem for those hoping that Kavanaugh goes down is that popularity isn't the only thing that matters. Miers withdrew mostly because conservatives complained about her qualifications. Bork was voted down by a Democrat-controlled Senate because his conservative record was so extensive.

Kavanaugh has neither of those problems. He has been rated as "well-qualified" by the American Bar Association. Kavanaugh also will be voted upon by a Senate that is controlled by Republicans.

When you combine the makeup of the Senate and Kavanaugh's judicial profile, his current popularity rating is probably not low enough to make any Republicans vote against him. He may even pick up a Democratic vote.

Now, the potentially good news for Democrats is that nominees do tend to see their popularity drop after a confirmation hearing.

Bork, for example, initially had a one-point net favorability rating in a Times Mirror poll. That's more than 10 points higher than where his popularity rating ended up in a Los Angeles Times poll before the Senate voted him down.

When I previously wrote on Kavanaugh, I noted that a Bork-like popularity might be low enough for Kavanaugh to get voted down. Specifically, it would on average lead to him getting 49 votes in favor compared to 50 votes against.

That, however, was back when Sen. John McCain was not healthy enough to be in Washington to vote on Kavanaugh's confirmation. In other words, back when Republicans really had only 50 senators to the Democrats' 49.

This week, Republican Jon Kyl was sworn in to fill McCain's seat. Kyl has a conservative voting record and was Kavanaugh's sherpa (i.e. the experienced Washington insider to guide him through the confirmation process). There is pretty much no chance that Kyl would vote against Kavanaugh. That brings Kavanaugh to 50 votes on average in a hypothetical scenario in which his popularity matches the worst polling nominee on record by the end of the confirmation process.

I guess it's possible that Kavanaugh could become even more unpopular than Bork was. In this highly partisan environment in which potential justices are far less likely to reveal their stances on matters of judicial importance than they were back when Bork was under consideration, it seems unlikely, however, that Kavanaugh's public numbers would move that much.

It's also possible that Kyl's connection to Kavanaugh might make him abstain from voting on him. Again though, that seems more like a Democratic fantasy than a potential reality.

The bottom line is that with 51 Republican senators, he's very likely to land on the Supreme Court.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 515504

Reported Deaths: 10296
CountyCasesDeaths
Harrison34999558
DeSoto33360432
Hinds32743643
Jackson24906392
Rankin22565405
Lee16455245
Madison14954283
Jones14158248
Forrest13834260
Lauderdale12311323
Lowndes11357193
Lamar10693140
Pearl River9748244
Lafayette8868143
Hancock7849132
Washington7559169
Oktibbeha7229138
Monroe7068179
Pontotoc7033110
Warren6885178
Panola6791135
Neshoba6744210
Marshall6707142
Bolivar6468151
Union643598
Pike5942157
Alcorn5921107
Lincoln5540136
George510680
Prentiss508285
Tippah495683
Itawamba4884107
Scott478999
Tate4777117
Adams4776125
Leflore4749144
Copiah458195
Yazoo458092
Simpson4566117
Wayne443472
Covington434895
Sunflower4319106
Marion4295112
Coahoma4244110
Leake414191
Newton396182
Tishomingo386894
Grenada3789109
Stone366166
Jasper341266
Attala340490
Chickasaw318367
Winston318392
Clay312978
Clarke301695
Calhoun286850
Holmes272889
Smith270552
Yalobusha244947
Tallahatchie232353
Greene225149
Walthall222166
Lawrence220242
Perry214556
Amite210357
Webster206548
Noxubee188843
Montgomery182157
Carroll175441
Jefferson Davis174343
Tunica163539
Benton153139
Kemper145441
Choctaw137027
Claiborne134839
Humphreys132239
Franklin126530
Quitman107828
Wilkinson106139
Jefferson97134
Sharkey65321
Issaquena1957
Unassigned00

Alabama Coronavirus Cases

Cases: 848137

Reported Deaths: 16185
CountyCasesDeaths
Jefferson1164052005
Mobile743681384
Madison53497738
Shelby38435371
Baldwin38195589
Tuscaloosa36152644
Montgomery34562782
Lee25655264
Calhoun22630520
Morgan22530411
Etowah20069520
Marshall18846318
Houston17777426
St. Clair16958359
Limestone16195220
Cullman16157306
Elmore15940295
Lauderdale15069307
Talladega14260302
DeKalb13083271
Walker12168380
Blount10779193
Autauga10560157
Jackson10214196
Coffee9435192
Colbert9366210
Dale9044192
Tallapoosa7285202
Russell710065
Chilton7090170
Covington6969197
Escambia6967144
Franklin6364108
Chambers5801142
Marion5437132
Dallas5302210
Pike5129109
Clarke485786
Lawrence4850130
Winston4793110
Geneva4655136
Bibb435795
Barbour370680
Butler3444101
Marengo342993
Monroe338366
Randolph337867
Pickens334890
Fayette331785
Henry321166
Cherokee320364
Hale319189
Crenshaw261678
Washington256852
Cleburne255460
Lamar253555
Clay252969
Macon246367
Conecuh193562
Coosa186048
Wilcox178538
Lowndes178468
Bullock152845
Perry141840
Sumter139841
Greene130545
Choctaw94428
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