Kagan Set To Be Least Popular Supreme Court Nominee To Be Confirmed

Elena Kagan may be smiling because her confirmation is assured, but she doesn't have as much public support as previous nominees.

While Elena Kagan heads into the final votes on her nomination to the Supreme Court with victory assured, a new Gallup poll shows that she does so with the lowest approval rating of any recent nominee:

PRINCETON, NJ — More Americans want the Senate to vote for rather than against Elena Kagan’s nomination to the Supreme Court, but the percentage in favor is less than a majority. Support for Kagan’s confirmation remains essentially the same as it was before her June confirmation hearings.

Typically, support for nominees does not change much after their hearings. Instead, Gallup usually finds increases in the percentage of Americans opposed and decreases in the percentage with no opinion. The percentage without an opinion on the Kagan nomination was the same before and after her hearings, which may indicate these were not widely followed by the average American.

The Senate Judiciary Committee will vote on Kagan’s nomination next week, with the full Senate voting later this summer. Kagan is expected to be confirmed, given the Senate’s large Democratic majority.

Among the general public, a majority of self-identified Democrats, 68%, favor Kagan’s confirmation, compared with 43% of independents and 21% of Republicans. A majority of Republicans, 60%, are opposed.

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in the final poll before the Senate confirmation vote (or, in the case of Harriet Miers, before her nomination was withdrawn).

This is somewhat surprising because, other than a ginned-up, phony, controversy over military recruitment while she was Dean of Harvard Law School and the usual suspects on issues like abortion, Kagan is a fairly uncontroversial nominee for someone picked by a Democratic President. Is she my idea of an ideal Supreme Court Justice ? No, but Barack Obama won the White House and, as others have reminded us in this context, elections have consequences. Absent evidence of some Bork-like disdain for fundamental Constitutional principles or a Harriet Miers situation, neither of which seem to exist here, there isn’t any reason why the President shouldn’t get his nominee confirmed.

So, what explains the poll numbers ?

For the most part, I think we’re looking at Obama’s own job approval problems being subjected on his nominee. It’s not something that will have any political consequences since Kagan is basically guaranteed to be confirmed, but it does show yet again just how partisan Supreme Court nominations have become.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. I think, in general, the public is grumpy about politics at the moment, and that is primarily because of the economy, so it is likely spill-over, as you note.

    The main thing that strikes me is that her relatively low approval is an utter non-story (not that it isn’t blog-worthy!) as it will make no difference to her confirmation nor to her job performance.

  2. Brummagem Joe says:

    Kagan’s nomination was barely on the national radar basically because she was a stellar candidate whose hearings were in the dog days of summer and the Republicans couldn’t really find any dirt to demonize her with. I’m going to bet if you went up to a hundred people in the street and asked them who Elena Kagan was (no hints) at least 75 of them wouldn’t have a clue. So what is this poll worth? Zilch.

  3. sam says:

    I don’t know exactly why, or, more importantly, even if it matters today, but this got me to thinking about those times in a galaxy far, far away, a long, long time ago when SCOTUS nominees got a letter saying they’d been confirmed and 99.9999% of the American population wasn’t aware of the person or the appointment.

  4. PD Shaw says:

    I think it’s also that she’s not a judge. Not that there is necessarily anything wrong with that. But the public is generally highly favorable to judges, probably because they are seen as independent of the more contentious political branches. Her background is political.

  5. Mr. Prosser says:

    I agree with all of you and add only that the hearings were bland, the senators asked pablum questions or merely postured and Kagan responded in kind (bland, not posturing).

  6. James Joyner says:

    I’m curious about the line “Bork-like disdain for fundamental Constitutional principles.” I was pretty young during the hearings but thought he was enormously well qualified. The only “Constitutional principle” I recall him expressing doubts about was privacy, but that was a recent invention of SCOTUS and isn’t in the text of the Constitution as written.

    I’ve come in recent years to view Bork as something of a nutter. But I’m not sure how much of that was evident at the time and how much is an old man’s bitterness of being denied his rightful place in the pantheon.

  7. Perhaps my view of Bork is too heavily influence by, as you put it, his turn to the nutters, but I do seem to recall that his views on the, specifically the First and Fourth Amendments were far outside the mainstream of legal thought.

  8. sam says:

    I also recall him, when asked about abortion, saying he hadn’t given it any thought. Which nobody, as I recall, believed for one moment. I think the animus against him flowed initially and irresistibly for the Democrats from the fact the he was the only one Nixon could get to fire Cox and the shitstorm, see (Saturday Night Massacre, that ensued. No way in hell that guy was gonna get confirmed.

  9. Ideology aside, I think that Bork’s biggest problem was that he just didn’t come across as a nice person during the hearings.

  10. I will say this about Bork: while at the time I thought he was a good nominee and have long accepted the argument that he was treated unfairly, I have in recent years re-evaluated him in terms of his intellectual positions. Having read one of his books, I must confess that I am not a big fan in terms of his views on liberty and freedom. (So, I guess, I too am endorsing the “nutters” position).

    I must confess, too, his actions during the Nixon administration are enough to give one pause (as sam notes).

  11. wr says:

    Sam — It was actualy Clarence Thomas who claimed not to have ever thought about the issue of abortion. That he wasn’t laughed out of the hearing immediately is still a great stain on the senate.

    What sunk Bork was his stated belief that the first amendment only applied to explicitly political speech.

  12. sam says:


    Sam — It was actualy Clarence Thomas…

    You’re right. I got my right-wingers confused.

  13. floyd says:

    The recurrent theme here has nothing to do with the court.
    It has to do with the fact that more and more the only argument from the left is claiming that anyone who disagrees with them is fringe or a “nutter”.
    Bankrupt argument at best, although ridicule can be effective in the “right ” hands![lol]

  14. An Interested Party says:

    Who knew that James and Doug and Steven are all part of “the left”…talk about a big tent…

  15. floyd says:

    I’m guessing just you?

  16. An Interested Party says:

    Not really…you were the one who brought up “the left” and the use of the word nutter, used by those three individuals to describe Bork…