With the Kavanaugh Charade, Do Polls Now Replace the Constitution?

The Ringling Brothers, Barnum & Bailey Circus closed its tents last year after a hundred-plus year run. The new circus, replacing the last generation of clowns and freaks, is called the United States Senate.

Dubbed the “greatest deliberative body,” the U.S. Senate has now become a cross between the Jerry Springer show and a teenage mean-girls slumber party. Rather than taking direction from the U.S. Constitution, the Senate now is a government version of the television reality show Big Brother. In this show, a group of contestants live together, isolated from the outside world, conspiring, harassing, and bullying each other in order to be the last shrew standing, taking home the grand prize.

The Constitution clearly spells out the role of the Senate in selecting Supreme Court justices. Article 2 dictates that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..."

Advice and consent means that Senators can provide input, question nominees about their future role as a Supreme Court Justice, then vote to approve the nomination. Typically, presidents are given deference to make nominations, and as long as such nominees are not clearly unqualified, to confirm these nominees to the court.

Nominees are usually confirmed without much fanfare, even those who are ideologically out of the mainstream, such as Ruth Bader Ginsburg, confirmed 96-3. Barack Obama’s two nominees were confirmed, but by a closer margin, Elena Kagan 63-37 and Sonia Sotomayor 68-31.

Enter Donald Trump and “advice and consent” yields to blatant partisanship. His first Supreme Court nominee, Neil Gorsuch, squeaked by 54-45. Trump’s current nominee, Brett Kavanaugh, is the star attraction in the newest reality show, not featuring housewives, but instead, “The Real Obnoxious Senators of Washington, D.C.”

The current antics with Kavanaugh and the out-of-the-blue accusations of a drunken grope session dating back to high school are more appropriate for an episode of Big Brother rather than the Senate Judiciary Committee. But that won’t stop Democrat Senators from using the opportunity to virtue signal to their base, fundraise, and make complete asses of themselves.

When the smears against Judge Kavanaugh aren’t adequate to derail his confirmation, there is always the tried and true tactic of the left – the opinion poll.

MSNBC, already having determined that Kavanaugh is guilty as charged, published a poll aimed at squishy Republican Senators, giving them an excuse to vote against Kavanaugh’s confirmation, joining the monolithic Democrat opposition to smear and ruin the most highly qualified nominee in a generation.

The poll’s purpose is to say that Americans hate Kavanaugh, just as other polls say the same about President Trump. Let’s take a closer look at the actual poll.

It is an NBC News/Wall Street Journal survey of 900 registered voters. Not likely voters, who are only a small fraction of registered voters, many of whom will not turn out to vote, especially in non-presidential elections. What did these registered voters say when asked to “rate your feelings” toward Judge Kavanaugh?

Twenty-seven percent had a positive impression of Brett Kavanaugh while 30 percent had a negative impression of him. Within the margin of error for the poll. Over a quarter of those surveyed had no idea who he even was.

Most Americans never heard of Brett Kavanaugh until his Supreme Court nomination. Circuit court judges are hardly household names. Once nominated, Kavanaugh received a barrage of negative press. After all, he was nominated by President Trump who himself receives over 90 percent negative media coverage.

The Hill declared, “Brett Kavanaugh is a threat to women, workers, and the environment.”

The New York Times warned, “The Kavanaugh Accusation Is Dangerous for the Pro-Life Movement.”

Fortune cautions, “Why Brett Kavanaugh Is a Huge Threat to Minority Rights.”

I could not find any headlines warning of Kavanaugh’s threat to children and pets but I’m sure they are out there. But you get the point. Just like coverage of Trump, Kavanaugh news is all negative all the time.

Other than political and news junkies, such as American Thinker readers, few know who Kavanaugh is and if they only get their news from CNN or NBC, they would have heard nothing other than that Kavanaugh is a reprobate pig on par with Donald Trump. Of course, they would have a negative impression of him.

When this sample of registered voters was asked if they support or oppose Kavanaugh’s nomination, he has 34 percent support. This is higher than Neil Gorsuch, Elena Kagan, and Sam Alito before their confirmations, but don’t expect MSNBC to be tweeting that factoid. Interestingly no recent Supreme Court nominee reached 50 percent support on the eve of their confirmation.

For most nominees, a significant percent of those polled “did not know enough” about the nominee to have an opinion, nearly half for some nominees. Thanks to Senator Dianne Feinstein and the media, that’s not a problem for Judge Kavanaugh.

Then there is the poll sample. As with most of these polls, they oversample Democrats. In this particular poll, Democrats represent 44 percent while Republicans only 36 percent, an 8-point difference and certainly enough to flip the 3-point differential in positive-negative feelings about Kavanaugh.

This is just another example of many recent polls whose sole purpose is not to reflect opinion, but to shape it. Polls are another weapon in the Democrat playbook against Republicans and their agenda, whether winning the midterms or filling a Supreme Court vacancy.

This poll is not aimed at voters, however, but instead at the supposed 'moderates,' the Jeff Flakes and Bob Corkers of the Senate. If NBC convinces them that the public hates Kavanaugh, this provides them a fig leaf of cover to vote against his nomination. As the vote will be on party lines, a couple of GOP defections torpedo the nomination.

Which in turn will depress GOP midterm turnout. If Republicans can’t confirm an eminently qualified jurist to the Supreme Court, bumbling through the gauntlet of Democrat dirty tricks and changing goalposts, then why bother returning them to majority status in Congress?

That is what is really on the line here. Not Kavanaugh, but the midterms. If Democrats win the Senate, Gorsuch will be Trump’s last nominee, even if he serves two terms. Who will stop them? Paul Ryan? Mitch McConnell?

Democrats are laying tripwires for Republicans to bungle the nomination, piss off their base, and scuttle their chances of keeping control of Congress. These polls are just another trap. I hope the GOP Senators are paying attention.

Brian C. Joondeph, MD, MPS, a Denver based physician and writer. Follow him on Facebook,  LinkedIn and Twitter.

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