Majority Of Americans Want New Supreme Court Justice Confirmed Before Midterms

Democrats are making largely meaningless appeals to the so-called 'Merrick Garland Precedent" to argue for a delay in confirming the President's next Supreme Court nominee. The American people feel differently.

Ever since Justice Anthony Kennedy announced his retirement last week, Democrats have been arguing that the Senate should put off consideration of whoever the President might select to replace him until after the upcoming midterm elections, which as of tomorrow will be exactly four months away. This call is quite obviously a call back to the refusal of Senate Majority Leader Mitch McConnell and the Republicans to hold a hearing or take a vote on the nomination of Judge Merrick Garland to succeed Justice Antonin Scalia after he died. At the time, Republicans and their supporters cited the fact that there was an upcoming Presidential election and that the American people should have an opportunity to be heard on the outcome of that election before the Senate acts on any nomination. Using much the same logic, many Democratic Senators and pundits are citing what they’ve come to call either the “Merrick Garland Precedent” or the “Mitch McConnell Precedent” in support of their argument that the Senate should delay consideration of a new Supreme Court nominee until after the election.

This position began mere minutes after Kennedy’s retirement announcement became public when Senate Majority Leader said on the Senate floor that the Republican-controlled Senate “should follow the rule they set in 2016, not to consider a Supreme Court justice in an election year.” He also said that “millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now.” Senate Minority Whip Dick Durbin said pretty much the same thing, and the message has been repeated by other Democratic Senators, including Kamala Harris, Elizabeth Warren, and several Democrats who sit on the minority side of the Senate Judiciary Committee. Just today, Senator Schumer doubled down on his position by making the rather absurd suggestion that President Trump should appoint Merrick Garland to replace Kennedy, mirroring similar comments that were made by some on the left before Trump named Justice Gorsuch as his nominee early last years. By contrast, Senator McConnell has said that he intends to move quickly on the nomination once the President announces it and that he intends to hold a vote on the nomination before the beginning of the new Supreme Court term in October. This means there would need to be a Senate vote before the end of September and preferably early enough before the start of the new term on October 1st so as to allow the new Justice to prepare for the first two weeks of oral argument, which have already been announced.

Obviously, Democrats have at least some hope that their appeal to what the Republicans did with respect to the Merrick Garland nomination will work to their political advantage notwithstanding the fact that it doesn’t appear to have had much of an impact on the 2016 election outside the Democratic base. In any case, if a new NBC News poll is any indication, the American public does not agree:

A majority of Americans believe the Republican-led Senate should vote on President Donald Trump’s Supreme Court nominee before the November midterm elections, undercutting the Democratic argument that it should be delayed until after the pivotal fall elections, according to a new NBC News|SurveyMonkey poll.

More than six in 10 Americans, or 62 percent, said Trump’s nominee, who will be announced on Monday, should be confirmed or rejected before the elections in which control of the House and Senate are at stake. About three in 10, or 33 percent, said the Senate should wait until after the elections, the poll found.

Sixty-six percent of Democrats and 60 percent of Republicans said Trump’s nominee would be an important factor in their vote in the midterms. However, less than half of independents, 46 percent, said it would be on their mind when casting their November ballot.

The vast majority of Republicans surveyed, 85 percent, said the Senate’s vote on the nominee should take place before the election. Roughly six in 10 Independents, or 61 percent, agreed. However, more than half of Democrats, 55 percent, believe the voting on a new justice should wait.

Obviously, there is at least some amount of hypocrisy in the fact that Republicans are prepared to proceed on a nomination to replace Kennedy just four months before the midterms, with a final vote on that nomination that would take place just 6-8 weeks before the election, after having refused to take any action on Garland’s nomination which was announced some eight months before the Presidential election and seven months before the start of the Court’s next term. However, as James Joyner correctly noted in his post on this issue on the day Kennedy announced his retirement, what the Republicans did with respect to the Garland nomination was in the end purely an exercise in power politics, it was not intended to be the establishment of some new precedent regarding the consideration of judicial nominees prior to an election. Additionally, as I put it in a post just a few weeks before President Trump took office, the Senate GOP Leadership made a huge political bet in the wake of Scalia’s death, one that they easily could have lost had Hillary Clinton won the election, and they ended up winning. In the end, that was all that really matters.

Part of the reason for this is because, in the end, voters outside the beltway clearly don’t really care about the “process stories” that routinely become the obsession of Members of Congress, pundits, reporters, and activists. By that, I mean that they generally don’t seem to care how something gets done in Washington as long as it gets done. This is the main reason why the GOP’s gamble on the Merrick Garland nomination failed to resonate with the American public and why Democratic efforts to portray the efforts to get to a quick vote on the new Supreme Court vacancy isn’t likely to resonate with them either. Polls like this make clear that they’re more concerned with what gets done than how it happens, and the intricacies of the rules of the United States Senate are hardly something that is going to interest the average American voter. Given that, any hope on the part of Democrats that they’re going to score political points on the contrast between the GOP position in March 2016 when Garland was nominated and its position today is way off the mark.

In any case, the Democrats efforts to resurrect the ghost of Merrick Garland are clearly meant to be a political move. By bringing it up, they obviously hope to revive the memories of that matter in the minds of their base and the American public in the hope that it will be advantageous to them in the midterm elections. Obviously, they are essentially powerless to stop the nomination itself thanks to the Republican decision to finish the work that Harry Reid had started and end the filibuster for Supreme Court nominations. People such as Schumer and Durbin are obviously smart enough to realize that. If this poll is any indication, though, the argument isn’t likely to resonate with the American public as a whole and could end up backfiring on Democrats if they try to slow the nomination down right before the election since such a move would seem to run counter to public opinion

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds 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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Joe says:

    It occurs to me that Trump may have a real problem on his hands with this pick in terms of the anti-abortion crowd. If he picks someone they think will carry their water, the justice may not be confirmable in a Senate where at least 2 Republicans (Murkoswki and Snow) have indicated that they will not vote for a candidate who is likely to reverse Roe v. Wade. If he picks a candidate who may get past the Senate, the anti-abortion crowd will conclude that he is no better than the rest of the Republican party and start to abandon him.

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  2. al Ameda says:

    A majority of Americans believe the Republican-led Senate should vote on President Donald Trump’s Supreme Court nominee before the November midterm elections, undercutting the Democratic argument that it should be delayed until after the pivotal fall elections, according to a new NBC News|SurveyMonkey poll.

    “Survey Monkey”? We use those internally where I work.
    How much more unscientific can we get with polling?

    Also Doug, not to nit pick …. but
    Senate Minority Whip Dick Durin said …. typo *Durbin

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  3. Kathy says:

    I wonder if the first rue of politics, “it’s only wrong when the other party does it,” prevents politicians from realizing the first rule of civilized politics: “Whatever you do to the other party, it will do to you eventually.”

    I guess it can all be superseded by the first rule of nihilistic politics: “In the long run, we’ll all be dead.”

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  4. george says:

    @Kathy:

    I wonder if the first rue of politics, “it’s only wrong when the other party does it,” prevents politicians from realizing the first rule of civilized politics: “Whatever you do to the other party, it will do to you eventually.”

    This is so completely, absolutely true that it should be branded on the forehead of every politician. Obama understood this, and I think its the underlying factor in Michele Obama’s go high when they go low statement (I wonder what it’d take to get her to run in 2020?)

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  5. @al Ameda:

    To be fair the political polling that Survey Monkey has done with NBC News over the past two years has proven to be fairly accurate and in line with more traditional pollsters.

    As for the rest, yes that was a typo. Fixed.

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  6. @Kathy:

    If Democrats controlled the Senate they’d be able to have an impact on the process. They don’t. Therefore, their citations to the Merrick Garland “precedent” and all that other nonsense is just political rhetoric.

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  7. An Interested Party says:

    Therefore, their citations to the Merrick Garland “precedent” and all that other nonsense is just political rhetoric.

    Good to know when Republicans howl down the road when the Dems expand the number of seats on the Supreme Court…just political rhetoric…

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  8. Kathy says:

    @Doug Mataconis:

    If Democrats controlled the Senate they’d be able to have an impact on the process. They don’t.

    Someday they will. And someday they will while a Republican is president.

    Besides, it’s not as though the Democrats didn’t play dirty tricks on the other party when they were in the majority. It works both ways.

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  9. Todd says:

    Realistically, the Democrats really can’t do anything to stop a conservative Justice from being seated. Even if Donald Trump somehow leaves office, Mike Pence will be choosing from essentially the same Federalist Society approved list of candidates. Plus, even if the Democrats, by some miracle, retake the Senate in November, they will not be able to keep the the seat open for 2+ years. Sadly, many of the people on the left screaming the loudest for Democrats in the Senate to “burn the house down” to stop this pick are the same ones who refused to support Hillary Clinton because she was “no different than the Republicans”. If Clinton was in office right now, it’s not unrealistic to think that it would be Democrats working on confirming a 6-3 majority, and possibly younger replacements for Gingberg and Breyer too.

    As the sad reality stands though, a replacement for Kennedy probably isn’t worth making a “last stand” over. Aside from a few high profile 5-4 decisions, there’s really no justification at all to think of Kennedy as a “moderate”. Besides, as Doug wrote about the other day, it could be interesting to see how the court looks with John Roberts as the new “swing vote”.

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  10. rachel says:

    I would be OK with the new Justice being confirmed as long as 2 conditions are met. First, there should be a history of sound, fair decisions that have been transparently arrived at. This is reasonable for any SCOTUS pick. Second, only candidates who aver that they will recuse themselves should any matter involving the Mueller investigation or Trump’s business or personal affairs come before the Court should be considered. I don’t know how or whether this can be enforced; but respect for the Supreme Court depends on them not only being impartial, but also appearing to be so.

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  11. An Interested Party says:

    Besides, it’s not as though the Democrats didn’t play dirty tricks on the other party when they were in the majority.

    Oh? Did they ever do to a Republican president what McConnell did to Obama? I don’t think so…

    …they will not be able to keep the the seat open for 2+ years.

    Why not? Republicans would…

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  12. TM01 says:

    @An Interested Party:
    Well hell.
    Trump should just pack the court now then!

    Packing the court is really just a stupid idea. Figures you’d go along with it.

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  13. An Interested Party says:

    Packing the court is really just a stupid idea.

    Not stupid at all…McConnell changed the rules…no reason for Democrats not to respond in kind when they have the opportunity…

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  14. TM01 says:

    @An Interested Party:

    Did they ever do to a Republican president what McConnell did to Obama? I don’t think so…

    Correct.

    Democrats just make up sexual harassment charges against a black SCOTUS nominee.

    Or oppose an Appeals Court nominee nominee because he’s Hispanic.

    Totes different.

    I think Trump should nominate Barrett so we can watch Democrats spew and sputter about how a Catholic shouldn’t be on the Supreme Court.

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  15. rachel says:

    @TM01:

    Democrats just make up sexual harassment charges against a black SCOTUS nominee.

    It was a woman whom he had been in a position to harass who made the allegation; and BTW, I believe her.

    Or oppose an Appeals Court nominee nominee because he’s Hispanic.

    What even are you babbling about?

    I think Trump should nominate Barrett so we can watch Democrats spew and sputter about how a Catholic shouldn’t be on the Supreme Court.

    The first party to nominate a Roman Catholic for President (Al Smith, 1928) is going to choke over having one on the Supreme Court now purely and simply for being a Roman Catholic now?

    You’re a loony.

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  16. Andre Kenji de Sousa says:

    @Todd:

    Sadly, many of the people on the left screaming the loudest for Democrats in the Senate to “burn the house down” to stop this pick are the same ones who refused to support Hillary Clinton because she was “no different than the Republicans”.

    Not only that. Had the Democrats kept the Senate in 2014 Barack Obama could have nominated someone more liberal than Garland to the Court, and Trump could not fill any seat with ANYONE in the Federalist Society list.

    But that would mean voting, donating to and supporting moderate candidates in Iowa and Wisconsin.

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  17. george says:

    @Andre Kenji de Sousa:

    Purity tests on within the left and right more or less cancel each other out; there’s huge in fighting in all political ideologies (applies even in countries like Canada with more than two main political parties). For instance, a higher percentage of Clinton supporters in 2008 voted for McCain than Sanders supporters who voted for Trump in 2016.

    Obama won anyway because he was an exceptionally liked candidate (deservedly so I’d say), and because the GOP had been in power for the two previous terms. Clinton lost because she was a pretty average candidate (she did as well as could be expected after two Dem terms) who represented the party in power.

    What cost Obama the 2014 mid-terms, and Clinton the 2016 election was that the D’s were in power. Its the same thing that happened to Bush earlier, and Clinton before that, and Bush Sr before that etc. Its extremely hard for a party to win three consecutive presidential elections (as in its only been accomplished once since WW2), and losing midterms is part of people’s tendency to want change for change’s sake.

    This too is true all around the world; you look at presidencies, at governing parties in parliamentary systems and you see the same thing – people want change, even if they’re fairly content with how things are going. Political wonks thought that 2016 should be an exception, because Trump was such an obvious disaster waiting to happen, but it turns out it was a normal election – most likely because most voters simply vote for who they always vote for (and 40% of potential voters never vote at all), and many of the others vote for change without bothering to spend more than ten minutes listening to any politician.

    The strongest thing Democrats will have going for them against Trump is time in power, though the first mid-terms usually don’t show that ‘tired of whoever is power’ factor yet.

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  18. teve tory says:

    If Clinton was in office right now, it’s not unrealistic to think that it would be Democrats working on confirming a 6-3 majority, and possibly younger replacements for Gingberg and Breyer too.

    IIRC several republicans said if Hillary won they would refuse to confirm justices for her entire term.

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  19. Andre Kenji de Sousa says:

    @george:

    What cost Obama the 2014 mid-terms, and Clinton the 2016 election was that the D’s were in power.

    The party that holds the White House always lose seats during midterm elections. On the other hand there are lots of Democrats that only magically appears when there is sign of wave elections – so, you have literally a dozen of people competing for the Democratic Nomination in California in 2018. Besides that, holding the Senate in 2014 was not that difficult.

    You can do demonstrations, but there is very little that can be done if you are in the minority.

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