Bench Memos

Law & the Courts

A Supreme Court Nominee Deserves Better

Supreme Court nominee Judge Brett Kavanaugh at the White House, July 9, 2018. (Jim Bourg/Reuters)

I didn’t see it coming. After three decades in the field of judicial appointments, I thought I had seen pretty much everything. I thought too soon.

Last week, Public Policy Polling conducted a survey of voters in Maine regarding the Kavanaugh nomination. Maine is on the radar screen because some say that Republican senator Susan Collins is among the handful who will determine whether Kavanaugh is confirmed.

Survey question 8 read: “Supreme Court nominee Brett Kavanaugh will likely support the Trump Administration position on a lawsuit which would strike down healthcare protections for people with preexisting conditions. Does learning this make you more likely or less likely to support confirmation of Brett Kavanaugh for the Supreme Court, or does it not make a difference?”


This has to be one of the most manipulative poll questions ever asked about a judicial nominee. First, it is not based on anything Kavanaugh has actually done, written, or said, but on a hypothetical. That’s not automatically bad, but the question asserts as fact what is, in fact, mere speculation.

Second, this question offers a mere sentence fragment — and a distorted one at that — about the lawsuit it mentions, implying that this lawsuit actually targets Obamacare’s requirement of coverage for people with pre-existing medical conditions. It doesn’t.

Third, the question obviously promotes the view that judges should be appointed based on which side will likely win in certain kinds of cases. That’s like hiring an umpire based on which teams he will favor during the upcoming season.

Rarely have so many flaws been packed into a single poll question.

At the end of the day, the conflict over judicial appointments boils down to a conflict over judicial power. Should judges take the power to make law away from the American people and their elected representatives? Certainly America’s Founders didn’t design the judiciary to operate that way.

Unfortunately, the American people’s understanding of our system of government and the judicial branch’s place in that system is less than optimal. After all, 12 percent think the Constitution protects the right to own a pet, and 22 percent believe that the three branches of government are the Democrat, Republican, and Independent branches. Ten percent of college graduates say that Judge Judy currently serves on the U.S. Supreme Court. One-third can’t name any branch of government, and nearly 40 percent can’t identify any rights actually protected by the First Amendment.

It’s scandalous that pollsters would aggravate this feeble understanding by using blatantly misleading questions about Judge Brett Kavanaugh. A Supreme Court nominee deserves better — even if he will not be sharing the bench with Judge Judy.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.


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