WASHINGTON — Supreme Court nominee Brett M. Kavanaugh faces the bright lights of his confirmation hearing Tuesday with a bitterly divided Senate that is nonetheless almost sure to install him as the next justice, even as the nation becomes more polarized than ever in battles over the judiciary.
A new Washington Post-ABC News poll finds Americans are split over whether President Donald Trump’s second nominee to the Supreme Court should be confirmed, with partisans more divided over the selection than any other high-court candidate in the past three decades.
Just under 4 in 10 — 38 percent — say he should be confirmed, while a similar 39 percent say he should not; almost a quarter, 23 percent, have no opinion. Middling levels of overall support plagued the nominations of failed Supreme Court picks for Presidents Reagan and George W. Bush.
Barring a major stumble by Kavanaugh, however, the 53-year-old is on track to be confirmed by the end of the month and sit on the nation’s most powerful court for decades — rendering the hearings as little more than a perfunctory box to check as Democrats struggle to land a blow against a nomination they have little power to kill.
"The numbers are not on our side," said Sen. Richard J. Durbin, D-Ill., the main vote counter for Senate Democrats. "Having said that, this is going to be an important and exhaustive hearing on the important issues facing the Supreme Court and Judge Kavanaugh."
Public views of Kavanaugh stand out for being more politically polarized than any Supreme Court nominee dating to 1987. Kavanaugh has the support of 78 percent of Republicans in the Post-ABC poll, along with 13 percent of Democrats, a difference of 65 percentage points.
The only other nominee with nearly as wide of a margin was Trump’s nominee Neil M. Gorsuch, who had the support of 81 percent of Republicans and 22 percent of Democrats — a difference of 59 points, according to a February 2017 Pew survey. Gorsuch still garnered more positive ratings overall than Kavanaugh, with 44 percent supporting his confirmation and 32 percent opposing.
Robert Bork, whose nomination was defeated by the Senate after he was chosen by Reagan, received narrowly positive support at 31 percent to 25 percent in Gallup’s initial gauge of opinion in 1987, although those figures turned more negative over time. And Bush’s nominee, Harriet Miers, garnered 33 percent support with opposition at 27 percent in Pew Research Center polling. In the face of opposition from the right, her nomination was withdrawn.
"Consider the president nominating him and what this president said about judges, what this president said about the Constitution, what he has said about what he expects of those who are loyal to him," Durbin said. "Is it any wonder the American people are skeptical about whether Judge Kavanaugh can truly be independent?"
Still, Republicans working to get Kavanaugh confirmed to the Supreme Court are unconcerned about his relative lack of popularity in public polling. Senate Majority Leader Mitch McConnell, R-Ky., needs only to keep his ranks together to get Kavanaugh confirmed, and Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska — considered to be key swing votes — have not signaled publicly that they are seriously considering rejecting his nomination.
Meanwhile, a trio of red-state Democrats — Sens. Heidi Heitkamp, N.D., Joe Donnelly, Ind., and Joe Manchin III, W.Va. — are being heavily pressured to cross party lines and confirm Kavanaugh, just as they did for Gorsuch in April 2017.
"It speaks more to the polarization than anything about the judge himself," said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, an advocacy group that promotes conservative nominees to the courts.
While a slew of Republican and Democratic senators have made their positions official on Kavanaugh, Severino added that the confirmation hearings are "also a real opportunity for the American people to see Brett Kavanaugh himself."
"They’ve heard a lot of things. They’ve heard this vision of him as this evil monster who’s out there to destroy the Constitution," she said. "They’ve heard he’s a great carpool dad . . . now they get a chance to see and judge for themselves."
Senate Democrats are preparing an onslaught of questions that center on health care and abortion access, Kavanaugh’s views on presidential power and what he knew about various controversies under the Bush administration, such as its treatment of enemy combatants in the wake of the Sept. 11, 2001, terrorist attacks. Kavanaugh served for five years under Bush as associate White House counsel and subsequently as staff secretary, and Democratic senators who questioned him during his confirmation hearings for the D.C. Circuit Court of Appeals insist Kavanaugh wasn’t truthful about his knowledge of key Bush administration policies.
The fate of the Affordable Care Act could be a potent line of questioning for Democrats, particularly as conservative states mounting a legal challenge to the health-care law face a hearing in Texas while Kavanaugh’s confirmation proceedings unfold.
And Sen. Mazie Hirono, D-Hawaii, said in an interview that she plans to question Kavanaugh on how much he knew about the misconduct allegations against Alex Kozinski, the former judge on the U.S. Court of Appeals for the 9th Circuit, for whom Kavanaugh clerked. Republicans, in turn, are prepared to point out that other Kozinski clerks have been nominated for federal judgeships and confirmed with the help of Democratic senators.
If confirmed, Kavanaugh would replace former Justice Anthony M. Kennedy, a swing vote for three decades on the high court.
On one of the issues that has animated Democrats in the Kavanaugh fight — abortion rights — most Americans want to hear the nominee’s opinion before he is confirmed.
Almost 6 in 10, 59 percent, say he should publicly state his opinion on the matter while about 3 in 10, 31 percent, say he should not. That mirrors Post-ABC polling since the early 2000s that found majorities wanting Supreme Court nominees to disclose their opinions on abortion.
"Certainly, I would have concerns about where he would go with Roe vs. Wade," Hirono said. "There will be a number of those who have those concerns."
More Democrats (74 percent) than Republicans (48 percent) say Kavanaugh should state his abortion position before being approved by the Senate. Leading up to Elena Kagan’s confirmation in 2010, that was flipped, with more Republicans (66 percent) than Democrats (46 percent) saying she should publicly state her position on abortion.
Overall, a 45 percent plurality says the Supreme Court should leave the ability for a woman to get an abortion the same as it is now, while 30 percent say the court should make it harder and 21 percent say it should become easier. People who want abortion made easier are largely opposed to Kavanaugh’s confirmation, with 62 percent of them saying he should not be confirmed and 15 percent saying he should. A majority of those who think abortion should be made harder support his confirmation (66 percent), while 13 percent say he should not be confirmed. Those who say the Supreme Court should not make changes to the ability for a woman to get an abortion lean against confirming him (45 percent) as opposed to confirming him (31 percent).
Among other demographic differences in support for Kavanaugh’s nomination are gender and religion. Almost half of men, 47 percent, say he should be confirmed, compared with 29 percent of women. And white evangelicals back Kavanaugh’s confirmation by about a 3-to-1 margin, 56 percent to 18 percent, although more than one-quarter have no opinion. White Catholics are more evenly divided, with 44 percent saying he should be confirmed and 38 percent saying he should not.
"That’s typical of the type of warfare against Republican nominees," Sen. Orrin G. Hatch, R-Utah, a former Judiciary Committee chairman who has participated in 14 Supreme Court nomination fights, said of public perceptions about Kavanaugh. "We’re going to get him confirmed. But there’ll be a lot of fuss and game-playing over it."
The Post-ABC poll was conducted among a random national sample of 1,003 adults reached on conventional phones and cellphones; the margin of sampling error for overall results is plus or minus 3.5 percentage points.