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 3:14 PM
Updated: Sep 6, 2018 3:23 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.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 704632

Reported Deaths: 13211
CountyCasesDeaths
Marion961411718
Lake51322943
Allen39040670
Hamilton34368405
St. Joseph33865539
Elkhart27197431
Vanderburgh22050394
Tippecanoe21725212
Johnson17475374
Porter17240298
Hendricks16754310
Clark12663190
Madison12321337
Vigo12172244
Monroe11417166
LaPorte10841204
Delaware10325184
Howard9629211
Kosciusko9098113
Hancock7954139
Bartholomew7867155
Warrick7680155
Floyd7543176
Wayne6887198
Grant6773171
Boone6524100
Morgan6379138
Dubois6074117
Marshall5770108
Dearborn568576
Cass5678102
Henry5569100
Noble539383
Jackson492869
Shelby478295
Lawrence4336118
Gibson427789
Harrison427570
Clinton417753
Montgomery417286
DeKalb407984
Huntington377480
Whitley376339
Miami371765
Knox365789
Steuben363357
Putnam352360
Jasper347546
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Adams337852
Ripley333468
Jefferson312180
White307854
Daviess289399
Wells285581
Decatur278592
Fayette277162
Greene270485
Posey268433
Scott260853
Clay253044
LaGrange252170
Randolph234680
Washington230631
Spencer227531
Jennings224747
Fountain208245
Sullivan207542
Starke202652
Owen191956
Fulton190939
Jay185829
Carroll185620
Perry179736
Orange176753
Rush170624
Vermillion165943
Franklin165635
Tipton160943
Parke144316
Blackford133331
Pike130234
Pulaski113245
Newton103034
Brown99740
Crawford97514
Benton96413
Martin82515
Warren79315
Switzerland7698
Union69710
Ohio55711
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Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1050112

Reported Deaths: 18991
CountyCasesDeaths
Franklin1219281356
Cuyahoga1067232069
Hamilton780741168
Montgomery49976996
Summit45252909
Lucas39984765
Butler37678570
Stark31385895
Lorain24111473
Warren23864293
Mahoning20869583
Lake19963362
Clermont19423229
Delaware18002130
Licking16109207
Fairfield15676197
Trumbull15553460
Medina14839259
Greene14643236
Clark13602293
Wood12733185
Portage12353196
Allen11312229
Richland11025198
Miami10525214
Muskingum8702127
Wayne8556209
Columbiana8535226
Pickaway8429121
Tuscarawas8370240
Marion8365135
Erie7554154
Hancock6694123
Ross6693146
Geauga6532146
Ashtabula6470165
Scioto6286101
Belmont5610158
Union557447
Lawrence5465102
Jefferson5303147
Huron5298114
Darke5268121
Sandusky5171120
Seneca5108120
Washington5073107
Athens500656
Auglaize475184
Mercer471184
Shelby455890
Knox4380108
Madison421559
Putnam420799
Ashland412688
Fulton409167
Defiance400896
Crawford3866101
Brown386055
Logan372876
Preble369898
Clinton360560
Ottawa356578
Highland346359
Williams324974
Champaign319257
Jackson307951
Guernsey306149
Perry289649
Fayette277348
Morrow274639
Hardin264164
Henry263566
Coshocton258857
Holmes253099
Van Wert238862
Gallia233346
Pike232931
Adams227852
Wyandot226953
Hocking208959
Carroll189147
Paulding168638
Meigs141538
Noble132837
Monroe128841
Morgan106623
Harrison105236
Vinton81414
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