In the days and weeks ahead, we are going to see public polls used by the media to gain leverage in the selection of a replacement for Sandra Day O’Connor. Because media organizations cannot openly campaign for a particular nominee or type of nominee, they will hide behind biased or leading polls to advance their agendas.
Before we succumb to these prejudiced conclusions, we should look at a plethora of polls that were taken just before O’Connor’s announcement. These pre-vacancy polls may provide more useful insight on the public’s real views of the Supreme Court, its justices and their decisions.
One of these surveys, released June 20 by the legal website FindLaw, makes us wonder whether public opinion should play any role in replacing O’Connor. The national survey of 1,000 adults found that nearly two-thirds of Americans couldn’t name a single current U.S. Supreme Court justice.
Departing O’Connor was the best-known justice, named by 25 percent of Americans. Close behind her was Clarence Thomas, mentioned by 21 percent. No other justice was mentioned by more than 10 percent of the public.
Liberal Democrats will rant and rave that Bush plans to appoint “another Scalia,” but how threatening will that be when just 9 percent of American adults recalled Antonin Scalia’s name as a justice? And when Americans are so unfamiliar with the current court, what justifies popular involvement in the selection of a new justice?
Another poll, conducted in mid-May for AP-Ipsos, appears to redeem the public, however. This poll asked 1,028 adults nationwide whether judges base their decisions mostly on interpretations of the law or mostly on their personal beliefs and political opinions. Although a slim majority of 51 percent said the law prevails, a strong 43 percent said judges let their own views prevail. This sizable minority shouldn’t object to Bush’s trying to appoint a justice whose views are consistent with his own. If justices rely on their own views more than they rely on the law, Bush must appoint a conservative.
Media polls will also press for “moderation” because they know they can’t win the war for outright liberalism. A nationwide Gallup poll of 1,006 adults taken in mid-June, before O’Connor’s decision, asked Americans whether they would like to see Bush appoint a new justice who would make the court more liberal or more conservative than it now is or whether they’d keep the court as it is now. A strong plurality of 41 percent chose a justice who’d make the court “more conservative.” Only 30 percent wanted a more liberal court, and just 24 percent championed the status quo.
The media will also argue that Bush should name a “noncontroversial” justice because their polls show that the Supreme Court is losing favor with the American public, a finding of Gallup and Pew Research Center polls reported last month. But some cross-tabs from the Pew poll reveal that this is really an argument for a more conservative justice.
Liberal Democrat approval of the court is virtually unchanged from past Pew polls. The most significant declines in approval of the court were recorded among white Protestant evangelicals and self-described conservative Republicans. So if the media truly want to boost the Supreme Court’s sagging poll ratings, they should urge Bush to name a certifiable conservative to replace O’Connor.
The media and their polls will also try to make religion an issue in the naming of a new justice. But here, too, pre-vacancy polls suggest that Bush is on firm ground in naming a conservative. A nationwide Rasmussen survey of 2,000 adults taken in early June showed that a near majority of 46 percent of Americans said the Supreme Court has been too hostile toward religion. Half that number, only 23 percent of Americans, feels the court has been too friendly toward religion. So Bush would be justified in appointing someone who is not hostile to America’s religious heritage, beliefs and values.
Hill is director of Hill Research Consultants, a Texas-based firm that has polled for GOP candidates and causes since 1988