New Poll Shows Majority Support For Kagan Confirmation

With just over two weeks to go before the Senate Judiciary Committee gavels her confirmation hearings to order, a new poll shows that Elena Kagan enjoys majority support for her confirmation:

Nearly six in 10 Americans say the Senate should vote to confirm U.S. Solicitor General Elena Kagan’s nomination to the Supreme Court, but most also want her to answer questions about how she would have decided past cases and to reveal her stand on legal abortion.

At 58 percent in the new Washington Post-ABC News poll, public support for Kagan’s confirmation is on par with that for now-Justice Sonia Sotomayor when she was tapped last year as President Obama’s first nominee for the court. About a quarter, 24 percent, oppose Kagan; 18 percent express no opinion.

Democrats overwhelmingly back the president’s pick, who would become the third woman serving on the nine-justice court, as do independents, by about a 2 to 1 ratio. More than a third of Republicans also support Kagan’s confirmation, putting her cross-party support exactly where Sotomayor’s was before her hearings started.

Last June, 36 percent of Republicans backed Sotomayor, with 43 percent opposed, precisely where Kagan’s Republican numbers are now. But in a poll taken a month later, as the Senate Judiciary Committee hearings on Sotomayor were wrapping up, GOP opposition to her confirmation spiked to 57 percent.

This year, Republican lawmakers are sure to ask Kagan’s opinions about past cases and will point to Kagan’s published support for a more open, lively exchange on constitutional issues. Nominees are generally reluctant to engage on this score, amounting to a process Kagan deemed a “vapid and hollow charade.”

In a 1995 book review, Kagan wrote about “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments,” and two-thirds of Americans say she should answer questions about how she would have ruled on past court cases. Majorities, though slimmer ones, said the same of Chief Justice John G. Roberts Jr. before his turn on the Senate stage.

Large majorities of Democrats, Republicans and independents say Kagan should answer such questions, but the president’s opponents are more eager to hear the details than are his supporters. Republicans are more apt than Democrats to want Kagan to give her opinions on case law, just as Democrats were significantly more likely than Republicans to want Roberts — a George W. Bush nominee — to do so in 2005. A majority of Republicans said Roberts should not answer such questions.

Of course, Kagan won’t directly answer a lot of these questions, just as Roberts and most nominees before him going back to the Bork debacle.

And I’m not sure that we should expect Supreme Court nominees to do otherwise.

I’m still one of the few remaining people who thinks that, outside of extreme opinions, the only relevant question for Supreme Court nominees should be whether they are qualified for the job. Asking a nominee how they would rule on specific cases, or what their view of a specific precedent such as Roe v. Wade might be, borders on being entirely inappropriate and, if the nominee were to answer could be considered a breach of the Cannons of Judicial Ethics since it could be viewed as a pre-judging a particular case before examining the merits and legal arguments.

So, when Elena Kagan declines to say how she’d rule on, say, a lawsuit challenging the newly passed abortion restrictions in North Dakota and Oklahoma, or the various lawsuits challenging the health care reform law, or the Constitutional issues surrounding same-sex marriage, or any other number of issues that are bound to reach the Supreme Court during her tenure, I for one won’t complain.

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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. Steve Plunk says:

    Didn’t someone here recently point out that a large majority of Americans couldn’t even name a Supreme Court justice? How valid is a poll like this knowing people are clueless on the topic?

  2. Yeggo says:

    Elena Kagan has higher confirmation numbers than any of the last four Supreme Court nominees, and while her opposing numbers are also higher (no doubt a byproduct of the political climate we find ourselves in), people continue to err on the side of the nominee when it comes to the Supreme Court. Even the firestorm surrounding Harriet Miers wasn’t enough to put her into negative territory.

    In short, no news is good news. InTrade is currently predicting between 60 and 65 votes for confirmation. I wouldn’t be surprised if she got a few more.