January 24, 2006

Polls on Alito.

CNN reports:
Support for Alito's confirmation grew after widely televised confirmation hearings, the poll found. Before the Senate Judiciary Committee hearings, held January 11-13, 49 percent of respondents backed his nomination. In the poll released Monday, 54 percent expressed support.

The percentage of people who opposed his confirmation remained unchanged [at 30 percent] after the hearings, Monday's poll found.
That says a lot about the quality of the Democratic Senators' presentation at the hearings. They were not able to gain one percentage point of opposition. You'd think that many people would, without giving it much thought, support a President's nominee initially. The 49 percent figure going into the hearing may show that. But the hearings should have eroded that high level of support at least a bit, and surely, some of the 21 percent undecided should have taken the negative position. Yet the hearings won Alito 5 additional points.

Clearly, the Democrats' strategy was poor. But exactly why was it so poor? I've said before that I think it's a mistake to portray judicial decisionmaking as a political enterprise, which is what they did, leaving Alito to prevail by doggedly explaining legal doctrine in response to every attempt at an attack. I think people want the Court to decide cases based on the law and want to believe a judge can do that. If so, the Democrats' attack on Alito would look ugly and offensive.

But it may be that a lot of people really do think the Court is political. If so, the Democrats have an entirely other reason to worry. It would mean that people want the Court to take the political positions the Democratic Senators assumed we would be outraged by. It's hard to say which issues would be most influential, but I note that the Senators tried very hard to frighten Americans about strong presidential power.
The top Democrat on the Senate Judiciary Committee said last week he believed Alito would fail to check what he views as the president's inappropriate expansion of executive power.

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy," Sen. Patrick Leahy of Vermont said Thursday.
Perhaps most Americans disagree.


Lola said...

I am pleased, though not surprised, that the American people didn't appreciate the antics carried on by certain Senators in the nominating committee. They only hurt their party platform and took attention away from the important issues. The democratic Senators who have already come out in opposition to Judge Alito are siding with groups that have done what they can to defame Alito's character and misrepresent his judging record. In fact, his colleagues from both sides of the party lines have come out to support him and express their concern for the treatment of this man who is respecred for his integrity and intellect. Thankfully, the poll numbers show a majority Americans agree with that line of thinking.

David said...

The flyover states represent the majority of opinion in the U.S. Most people condense their understanding of constitutional law down to a common sense interpretation. They, and I, do not support an east coast or west coast 'new age' interpretation of what the founding fathers committed to paper.

Articulated or not, polls suggest that people want judges to fairly apply the law based on the simple truths espoused in the Constitution.

East coast 'brahmins' who pretend to know what is best for the rest of us are out of touch and wrong.

Fundamentally, a strong majority of Americans support NSA activities in support of the GWOT and find offensive the foul breath of special interests manipulating certain democrats to further an out-of-touch agenda.

Regarding the inflammatory reference to a strip-searched 10 year old girl, that we hear ad nauseum, most Americans understand that a dope smuggler would not hesitate to plant drugs on such an unfortunate innocent.

Common sense may be in short supply in the nation's capitol, but it is not in the rest of the U.S. Insulting the intelligence of Americans will not win an election.

Gerry said...

"But the hearings should have eroded that high level of support"

How do you figure?

If it is a mistake to "portray judicial decisionmaking as a political enterprise", then the only way for a hearing to erode that level of high support would have been if Alito was not a highly qualified, knowledgeable, and judicious Judge. By all accounts, he is all of those things, so unless it is all about politics, then it is only right that the hearings did not erode support. Why on earth should they have?

Gerry said...

I should have continued...

"and surely, some of the 21 percent undecided should have taken the negative position. "

I am sure that some of the 21 percent undecided did move to the negative position. I am also sure that some of the previous negatives moved to undecided, and some positives moved to undecided or negative, and some negative moved to positive.

The fact that the oppose number did not move does not mean that no undecided were convinced to oppose. It only means that for every undecided who moved to oppose, some oppose moved to a more favorable disposition.

Gaius Arbo said...

Interesting points. I rather think there may be several factors at work here. The performance by many of the Senators did not inspire trust in their abilities or judgement. Frankly, out here in silent majority land, the scandal of the day club no longer draws any real attention. They have tried so hard to whip up a frenzy over so many non-issues that they have reached "boy who cried wolf" status. They are not getting traction with their hysteria because it is seen as hysteria, not something to actually feel threatened by.

I think Alito handled things just right, his measured responses to overblown phoney outrage played very well with the public at large.

Mark Kaplan said...

For many Americans the Leto case is the most significant decision the Supreme Court has made in a long time. It's a decision that most Americans disagree with. I believe that many people in watching the hearings thought to themselves "is Alito the kind of guy that would let someone steal your property and hand it over to a developer." I believe that the answer to that is "no." Abortion is not the most important thing to a large proportion of Americans. Keeping one's safety, health and retaining one's property is #1 for many people. It is those people who were influenced positively towards Alito if they watched the hearings or read about them.

MadisonMan said...

I will point out that a 5 percentage point change is within the noise of the statistics. But I guess a story about a change in opinion that isn't a change isn't a story.

It's unfortunate that journalists writing about polls are so innumerate (Innumeracy is one of my favorite books).

Steve Donohue said...

Kohl votes no in committee.

Just keeping you updated, Prof.

Ann Althouse said...

Gerry: I only mean "should" in the sense that the hearings should have diminished the support from the unthinking presumption level IF the Democrats had a good presentation. But it's possible that nothing the Democrats could have done would have won them any more support. Maybe all other approaches would have done worse.

Mark Kaplan: You mean Kelo.

Madisonman: You're right, and I shouldn't have glossed over that. And it's also true, as Gerry said that people may have switched categories, so that maybe the 30% against Alito had a different set of people in the end.

Mark said...

Seems like Feingold is voting no. Good for him. Alito does not deserve to be on the Court.

PatCA said...

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy."

"The final check"? Leahy's statement embodies the Dems' philosophy that anything other than their hegemony is fascism, that the progressive doctrine is the good and default position--and America doesn't agree with that. In fact, a right leaning Court would effectively balance the progressives' march to the sea of the last 30 years. Liberalism accomplished many good things; now is the time for thoughtful reticence.

Mark said...

I agree that Democrats' strategy to defeat Alito was very poor and badly executed. However, it is inherently difficult to excite the public about the constitutional law, especially theory of unitary executive and the like. Most people simply don't know or don't care enough.
It would be a mistake to think that people support Alito's views. For example, 2/3 of the public believe that Roe should be upheld, while Alito, if not overturning Roe, will surely do what he can to hollow its holding.

The morale is that the Supreme Court's interpretation of constitutional law is inherently political and reflects the deeply held opinions of particular Justices. It's too bad that most likely this interpretation will be shaped by the views of Alito.

TidalPoet said...

I always had this strange notion that the Courts, Congress, and the Executive were the checks against abuse eachother. Not the political movements inside each.

But it is interesting to see Leahy admit that the Court is a lefty organization at the moment as he complains that it may not be in the future.

Mark said...

Where the heck did Leahy "admit" that the Court was "lefty"? This is a ridiculous characterization of the Rehnquist's and Robert's Courts. The Supreme Court has been on balance pretty conservative since Thomas' confirmation.

RogerA said...

I guess what I don't understand is why folks think the SCOTUS isn't political--Most government classes I have taken always start the section on SCOTUS saying something to the effect that the Supreme Court reads the election results (or perhaps its was polls).

Louise said...

I agree with rogera. SCOTUS is political...but, it doesn't mean that is how it is SUPPOSED to be. Making the Supreme Court political totally messes with the checks and balances. Politics should play a part in the nomination process, the confirmation process or the justices' decisions. I think a bright, independent and qualified legal mind such as Judge Alito will be a great asset to help turn the page of politics on the Supreme Court!

EddieP said...

Leahy's fear is that the Court will stop creating law and return to interpreting it. That's a huge loss for the progressives.

TidalPoet said...

"Where the heck did Leahy "admit" that the Court was "lefty"?"

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy."

Radically to the right. Where exactly does Leahy believe it's sitting currently? If having someone who may (or may not) decide to overturn Roe vs. Wade (a leftist cause) would push the Court to the 'radical' right, then he's making it plainly obvious that the Court is sitting in the left's camp.

Uncle Buck said...


I read Leahy's statement differently - - that he was saying two different things. One, that Bush wants to move the Supreme Court even further to the right. And two, that by nominating Alito (who is deferential to presidential power), the Supreme Court won't be a good check against the executive branch.

As for the first charge, who does Leahy expect a Republican president to nominate? A liberal? And as for the second charge, who can say for sure just how much the S.C. will defer to presidential power in the particular cases that might come before it in the future?

I think the Democratic Senators should vote to confirm Alito. Someday, hopefully soon, there will be a Democratic president, and the tables will be turned.

Beldar said...

Our host wrote,

[blockquote]But it may be that a lot of people really do think the Court is political. If so, the Democrats have an entirely other reason to worry. It would mean that people want the Court to take the political positions the Democratic Senators assumed we would be outraged by.[/blockquote]

Profound and intriguing punditry, Professor A. Bravo! I think you're exactly right here, which of course means there will be some gnashing of teeth on the social-agenda right when Alito fails to reflexively pander to their particular concerns.

So what do you call the undeclared and uneasy coalition of these two groups that oppose the leftish ideologue/skeptics (although they'd say "realists" or "positivits," I guess), who are so out of touch with both how the federal courts actually function most of the time?

Naifs? Law professors (present and a few other highly select members of that company excluded)?

The unanimity of the Democratic members of the Judiciary Committee is a facade. Even Harry Reid and Chuck Schumer, though they may lack the vote-counting and log-rollling skills of Lyndon Johnson (thus making them like every other Senator in history), arenn't brave enough to climb into the filibuster kamikazi planes on tihs nominee. Ginsburg, Stevens, Souter, even Kennedy, and they'd gladly smash their full-bodied wrath against the confirmation process, which (abselt serious Republican defections) will make them like a smallish plauge of grasshoppers playing chicken with Peterbilt windshields on the Interstate. Now [i]that[/i] will be fun to watch.

The Drill SGT said...

The strategy and position that the Dem's are postulating on Justices is suicidal personally and ultimately will cripple the US judicial system IMHO.

1. They are driving toward a party line vote on a nominee that received a unanimous "highly recommended" recommendation (this used to be the gold standard for Dem's) from the ABA. 15 years of experience, etc, etc.

2. The Rep's clearly recognize this partisan approach and threaten to apply the same standard to nominees from Democratic Presidents.

Sen. Jon Kyl (news, bio, voting record), R-Ariz., warned that Republicans would remember a party-line Alito vote in future Supreme Court nominations, considering several Republicans voted for Justices Stephen Breyer and Ruth Bader Ginsburg, who were nominated by President Clinton.

"It is simply unrealistic to think that one party would put itself at a disadvantage by eschewing political considerations while the other party almost unanimously applies such considerations," Kyl said. "So I say to my Democratic friends: Think carefully about what is being done today. Its impact will be felt well beyond this particular nominee."

3. Given that the Rep's have a 62 vote natural majority in red state Senate seats, this ultimately would lead to the inability of any Democratic President to get ANY judge approved.

4. Ultimate politicization or melt down of our judicial system.

a travesty.

The Drill SGT said...

I meant "highly qualified" not recommended

The Drill SGT said...


Beldar: As a guy who has had a heart attack, talking to a another guy who has had a heart attack, the lack of postings on your blog had me more than a little concerned. I've missed your acerbic wit since October and the Meirs debacle.

Glad to see you're still around.

Gaius Arbo said...

I agree with what the Drill Sgt wrote.

I read that same quote earlier and thought the Dems were putting themselves into a real box. Who the hell is coming up with their strategy? Alfred E. Newman?

TidalPoet said...

I can only log on and see "World Series (Central time zone)" so many times. Glad to see you're still kicking Beldar!

Wade_Garrett said...

David - I don't know that I agree with you. What's the common sense meaning of the second amendment? Where are all of the well regulated militias? Is Bernie Goetz a well-regulated militia? Hey, don't call me a liberal, I'm just interpreting the Constitution in a common-sense fashion! If common-sense interpretations of the Constitution were so simple, there wouldn't be as much debate about them as we currently have.

I for one am at a loss to come up with a common sense definition of "new age interpretation of the Constitution."

And, for the record, the majority of Americans live on either the East or the West coast. The flyover states betsowed majority status upon themselves at some point during the tenure of Earl Warren as Chief Justice of the United States. If they're so much in the majority, why do the Constitutional Amendments they continue to propose keep going nowhere?

Gaius Arbo said...

I'm not sure that statement is correct, Terrence.


RogerA said...

Thank you, Gaius, for bringing facts into play--you beat me to it--its amazing how many folks simply ignore reality. www.factfinder.census.gov is a wonderful search engine of census data.

Gaius Arbo said...

Damn pesky facts. Interfering with the overall truthiness and all......

Wade_Garrett said...

To which facts do you refer? All I see is a lot of empty space.

Montana, Wyoming, North Dakota and South Dakota taken together are larger than France but have a combined population of less than Chicago. Alaska is even larger, and has even fewer people.

Brooklyn, taken on its own, would be the fourth-most populous city in the country, and yet it is just one of the five boroughs of New York City. I could keep going. Your map proves very little.

Abraham said...

"What's the common sense meaning of the second amendment?"

The common-sense meaning is that unless there is some compelling state interest, you have the right to have guns. Curiously, it is courts that have re-interpreted the right to apply only to the national guard (?!?!?)

Gaius Arbo said...

Ok, this is quick and dirty:

Using raw data from here:


And simply taking raw counts by state only

Coast states population:
Appox 148 million
All others
Appox 134 million

The difference is less than 5%.

However, it's more complicated that just the raw number. Having lived there, I can state that while NYC is overwhelmingly Democrat, Upstate is most definitely not. In fact Upstate more closely resembles the Midwest in makeup and political view than it does the East coast.

I'm rather sure from these numbers that the assertion that the majority live on the coasts would be an overstatement. The assertion would be true if expessed as the majority live in coastal states. However, the difference is very small even then.

Dismissing the "flyover" states is not a good idea, since they do actually represent a majority in the Senate.