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The people have spoken. So what?

May 27, 2010 |  9:35 am

The people -- or at least the people surveyed by USA Today -- don't like Supreme Court nominee Elena Kagan. Only 46% of respondents said yes when asked if they would like to see the Senate vote for her confirmation.

By comparison, USA today notes:

Chief Justice John Roberts was viewed positively by 60% by the time he was confirmed in 2005, Clarence Thomas by 58% in 1991, Sonia Sotomayor by 55% when she was confirmed last year. Ruth Bader Ginsburg was favored by 53% in 1993 and Samuel Alito by 54% in 2006.

Which proves -- what?

First, there's an apples-and-oranges problem with the comparisons. Kagan hasn't testified before the Senate Judiciary Committee yet, let alone had her nomination voted on by the full Senate.

Second, why should we care? Polls about citizens' preferences in political candidates matter because they vote in elections. There is no popular vote on Supreme Court nominees. Rarely -- the Robert Bork nomination comes to mind -- public opinion about a Supreme Court nomination weighs heavily with senators. That isn't the case with Kagan.

The rap against Kagan is that we don't know enough about her views, because she hasn't been a judge and has a scanty record of academic publications. So what does the public know that senators don't?

My own view is that polls not measuring how people may vote should have two stages. First, a respondent should be asked a few factual questions about the subject matter. (I'm not talking about softballs like: "Have you heard that President Obama nominated Elena Kagan to the Supreme Court.")  Only if he or she gets these right should the pollster go on to ask for an opinion.

-- Michael McGough


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