Wednesday, July 11, 2018

SBA List Poll: Voters in Key States Want Kavanaugh Confirmed to SCOTUS

In case you've been living under a rock, President Trump nominated Judge Brett Kavanaugh to fill the Supreme Court seat made empty by Justice Kennedy's retirement. Speculation is rampant that Kavanaugh could be the fifth vote necessary to repeal Roe v. Wade—or at the very least, allow states to regulate abortion businesses like the medical facilities they purport to be, which the Court rejected in Whole Woman's Health v. Hellerstedt.

The confirmation process is bound to be nasty and partisan. The GOP currently holds the slimmest of majorities in the Senate. Possible surprises could come from Republican abortion supporters Sen. Murkowski of Alaska and Sen. Collins of Maine, and/or from any of the several Democratic Senators who are up for re-election in red states.

Yesterday, the Susan B. Anthony List released a poll from some of those states. Respondents in Florida (Sen. Nelson), Indiana (Sen. Donnelly), Missouri (Sen. McCaskill), North Dakota (Sen. Heitkamp), and West Virginia (Sen. Manchin) were asked if they wanted their Senators to confirm Trump's then-unnamed nominee. Even without knowing it would be Kavanaugh, who is widely considered a safe pick, strong majorities supported confirmation:
  • 56% in Florida
  • 56% in Indiana
  • 57% in Missouri
  • 68% in North Dakota
  • 59% in West Virginia
The numbers highlight the bind those five Democratic Senators face. Will they follow the will of their constituents by confirming Kavanaugh, and risk displeasing their base? Or will they vote against Kavanaugh and have that vote become the subject of attack ads which will resonate with a majority of voters? Neither is ideal heading into November. 

The pollsters followed up with a fascinating second question: “Do you think that the U.S. Supreme Court should decide abortion policy for [Name of State], or do you think abortion policy should be decided by the people of [Name of State] through their elected officials?” 

This is a great way to ask the question. As many have pointed out, polls that ask whether a person supports or opposes Roe v. Wade are highly problematic. Roe is a complex case that legal scholars have written volumes about; it's unfair to assume that the average person understands it. And when pollsters try to explain Roe's holding as part of the question, they invariably do a bad job. Framing the question in terms of who makes abortion policy is much less confusing. It's not perfect—for one thing, it doesn't account for subsequent cases like Planned Parenthood v. Casey and Gonzalez v. Carhart that gave states a bit more room to legislate—but it beats the alternatives. 

And the answers are quite illuminating. In all five states surveyed, voters much preferred that abortion policy be set by legislatures instead of the Supreme Court: 
  • 54% in Florida
  • 65% in Indiana
  • 57% in Missouri
  • 67% in North Dakota
  • 57% in West Virginia
Those results are great news for the right to life, but we should not take anything for granted. Remember to contact your Senators, especially if you live in one of those key states!

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