A recent Gallup poll places Elena Kagan’s nomination in “perilous territory.” According to the poll, only two other nominees polled lower than Kagan at this stage in the process --Harriet Miers and Robert Bork. Perilous territory indeed.
The numbers also break in predictable fashion along party lines: while 68% of Democrats are in favor, 12% in opposition; the numbers are 26% and 51%, respectively, for Republicans. Independents are 43% in support, 33% in opposition.
Now, I don't think this amounts to anything, nor will it lead to a rejection of Kagan's nomination by the Democratically-controlled Senate. But it does raise some very interesting questions about Kagan as a candidate and the nomination process in general in relation to the public.
First, I don't think that Kagan is as impressive a candidate as the President and her close friends would want us to believe, nor do I think she is the best candidate President Obama could have selected. Yet, it is also true that her qualifications are unimpeachable. How does a nominee with Kagan's credentials fare as low as she does? This is a particularly interesting question in light of Bork's and Miers' nomination. Both of these nominations energized the party base and became lightning rods about the future of the Court. I don't think the same can be said for the Kagan nomination.
Glen Greenwald could not be that powerful, could he?
Second, the public's initial support for Kagan was at 40% back on May 10. Over the course of two weeks, this support inched upward, even while the candidate said precious little of any consequence. This is true across party lines, with support for Kagan rising, if moderately, for Democrats, Republicans, and independents alike. Yet 22% of the public still holds no opinion of her. This is the 22% percent the White House and Republican leaders will be trying to influence.
Gallup pollster Jeffrey Jones concluded that "[a]t this point in the process, however, there does not seem to be much in Kagan's background or in the political environment that would prevent her from becoming the first nominee to win confirmation with less than majority initial public backing." This is where the Clinton era papers and the Marshall papers come in. According to Senator Sessions, top Republican in the Senate Judiciary Committee, for example, "Kagan's [Marshall] memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired result than fairly following the Constitution."
Will the public care? Probably not. And in this case, as Senator Sessions seeks to derail a judicial nomination, that might be a good thing.