The Line: Two-thirds of Americans believe that Supreme Court nominee Merrick Garland deserves a Senate hearing and vote.
The Party: Democratic
President Obama, on March 16, nominated Judge Merrick Garland to replace the late Justice Antonin Scalia on the Supreme Court. Senate Majority Leader Mitch McConnell responded by reiterating that the Senate will not consider the nomination, saying the next president should make the appointment.
Faced with a partisan standoff, President Obama and Senate Democrats have been citing public polls that support their position that the Senate should hold hearings and vote on Garland’s nomination.
On the day of the nomination, Sen. Charles Schumer said on CNN that “the American people [are] overwhelmingly of the view that there ought to be a hearing and a vote.”
That same day, Sen. Dick Durbin appeared on MSNBC and said “two-thirds of the American people think Senate Republicans are being unfair, that they aren’t doing their job, they aren’t living up to their constitutional responsibility.” He added, “So let’s face facts here.”
The facts, however, are not as settled as the Democrats make them out to be.
Yes, there are two polls that support the Democrats. A Washington Post/ABC News poll, taken March 3-6, found that 63 percent of those polled believe the Senate should “hold hearings and vote.” Similarly, a CNN/ORC International poll, taken Feb. 24-27, reported that 66 percent of poll respondents said the Senate should “hold hearings.” Durbin’s spokesman, Ben Marter, says the senator was referring to the CNN/ORC International poll.
But there are other polls that don’t show overwhelming public sentiment for a hearing and a vote.
A Wall Street Journal/NBC Poll, taken March 3-6, found that 48 percent prefer a “vote this year” on Obama’s nominee, while 49 percent in The Economist/YouGov poll, taken March 10-12, agreed that “Republican leadership in the Senate should hold hearings on the nominee.”
The latest poll — taken after Obama nominated Garland — comes from Morning Consult. That poll, which was in the field March 16-18, found that 48 percent of those surveyed said the Senate should “hold hearings” on Garland’s nomination, and 47 percent said the Senate should “hold a vote.”
The variation in the polls is likely due to the wording of the questions.
For example, the Washington Post/ABC News poll asks a single question on whether the Senate should “hold hearings and vote” on the nomination. As we said, 63 percent in that poll said the Senate should “hold hearings and vote.” But the Wall Street Journal/NBC News poll asked separate questions on whether to hold hearings and whether to hold a vote.
The Wall Street Journal/NBC News poll asked poll respondents whether they support or oppose the Republican decision not to hold hearings, and whether the Senate should “vote this year.” The Wall Street Journal/NBC News poll found more support for holding hearings (55 percent) than for holding a vote (48 percent).
Michael Link, the immediate past president of the American Association for Public Opinion Research, called the Washington Post/ABC News poll question a “double-barrel question” that should be avoided.
“We call that a double-barrel question where you are combining two concepts into one,” Link said in an interview with FactCheck.org. “It becomes more difficult” to determine the respondent’s intent, he added. “You don’t know which one they are responding to. We try to avoid that [double-barrel] question.”
Another example: The CNN/ORC International poll cited by Durbin found that 66 percent of those surveyed said the Senate should hold hearings, but they were not presented with the option to say that holding hearings should depend on the nominee. A small percentage — just 1 percent — voluntarily offered that response.
However, poll respondents were given that choice in The Economist/YouGov poll and 16 percent said holding a vote should depend on who is nominated. As a result, only 49 percent — less than half — of those in the Economist/YouGov poll said the Senate should hold hearings.
Link said that the difference between the results of the CNN/ORC International poll and The Economist/YouGov poll indicates that there is “soft support” on the issue of whether the Senate should hold hearings and a vote.
“You’ll get a different answer when you force a choice,” Link said, referring to the CNN/ORC International poll. “That can make a big difference on an issue that is new and not settled yet.”
“This is a new issue. The public’s view is soft and formulating,” Link said of the partisan court fight. “Most people are just getting exposed to this issue. It doesn’t surprise me that we are seeing this variation. These are all good [polling] organizations. Different times, different wording — and that can have an impact. But the key thing is this is a new phenomenon — it is soft and in formulation.”
We take no position on the partisan dispute over how to handle the Supreme Court vacancy or the president’s nomination of Garland, who is the chief judge of the U.S. Court of Appeals for the D.C. Circuit.
But the Democrats say the public “overwhelmingly” supports their position, as Schumer put it, when in fact there are other polls that don’t show overwhelming public sentiment for a hearing and a vote.
Here are the poll questions and the results of the polls we cite above:
CNN/ORC International poll, Feb. 24-27:
Next, as you may know, the death of Justice Antonin Scalia has created a vacancy on the Supreme Court. Do you think Barack Obama should nominate someone to fill the vacancy or should the seat remain vacant until a new president takes office in January 2017?
Should nominate: 58 percent
Seat remain vacant: 41 percent
No opinion: 2 percent
President Obama has said that he will nominate someone to fill the vacancy. Do you think the Republican leadership in the Senate should or should not hold hearings on the nominee?
Should hold hearings: 66 percent
Should not: 32 percent
Depends on who is nominated (volunteered): 1 percent
No opinion: 2 percent
Washington Post/ABC News poll, March 3-6:
The death of Supreme Court Justice Antonin Scalia has opened a seat on the U.S. Supreme Court. After Obama nominates someone to replace Scalia, do you think the Senate should (hold hearings and vote on whether to accept the nomination), or should the Senate (NOT hold hearings, which would block the nomination and leave it to the next president)? Do you feel that way strongly or somewhat?
Should hold hearings: 63 percent
Strongly, 44 percent
Somewhat, 19 percent
Should not hold hearings: 32 percent
Somewhat, 6 percent
Strongly, 25 percent
No opinion: 5 percent
Wall Street Journal/NBC News poll, March 3-6:
Recently, a Supreme Court Justice passed away leaving a vacancy on the court. President Obama will nominate a new person to serve on the U.S. Supreme Court. Would you prefer the U.S. Senate … vote this year on the replacement nominated by President Obama or leave the position vacant and wait to vote next year on the replacement nominated by the new president or do you not have an opinion one way or the other?
Vote this year: 48 percent
Leave vacant and wait: 37 percent
No opinion: 14 percent
Not sure: 1 percent
The U.S. Constitution requires the President to nominate a candidate to fill an opening on the Supreme Court. The U.S. Senate has the responsibility to confirm or reject a nominee. Republicans who control the Senate say they will not hold confirmation hearings and have no plans to consider a nominee put forward by President Obama. Do you approve or disapprove of this decision not to consider President Obama’s nominee, or do you not have an opinion one way or the other? (IF “APPROVE” OR “DISAPPROVE,” ASK:) And do you strongly (approve/disapprove) or just somewhat (approve/disapprove)?
Approve: 28 percent
Strongly, 22 percent
Somewhat, 6 percent
Disapprove: 55 percent
Strongly, 45 percent
Somewhat, 10 percent
No opinion: 16 percent
Not sure: 1 percent
The Economist/YouGov poll, March 10-12:
As you may know, the death of Justice Antonin Scalia has created a vacancy on the Supreme Court. How important is the choice of the next Supreme Court justice to you personally?
Very important: 47 percent
Somewhat important: 27 percent
Not too important: 10 percent
Not at all important: 5 percent
Not sure: 10 percent
Do you think Barack Obama should nominate someone to fill the vacancy or should the seat remain vacant until a new president takes office in January 2017?
Should nominate: 51 percent
Seat Remain vacant: 36 percent
Not sure: 13 percent
President Obama has said that he will nominate someone to fill the Supreme Court vacancy caused by Antonin Scalia’s death. Do you think the Republican leadership in the Senate should or should not hold hearings on the nominee?
Should hold hearings: 49 percent
Should not hold hearings: 20 percent
Depends on who is nominated: 16 percent
Not sure: 15 percent
Suppose all or most of the Republicans in the Senate oppose President Obama’s Supreme Court nominee. Do you think they would be justified — or not justified — in using Senate procedures, such as filibuster, to prevent an up-or-down vote on the nominee?
Justified: 38 percent
Not justified: 36 percent
Not sure: 26 percent
Morning Consult poll, March 16-18
Should the U.S. Senate do any of the following regarding Merrick Garland’s nomination to the Supreme Court?
Hold hearings?
Yes: 48 percent
No: 23 percent
Don’t know/No opinion: 29 percent
Hold a vote?
Yes: 47 percent
No: 23 percent
Don’t know/No opinion: 31 percent
Confirm?
Yes: 37 percent
No: 24 percent
Don’t know/No opinion: 39 percent
Who should nominate the next Supreme Court justice?
Obama: 45 percent
2016 winner: 41 percent
Don’t know/No opinion: 15 percent
Democrats citing public opinion surveys that show Supreme Court nominee Merrick Garland deserves a Senate hearing and vote:
President Obama, March 16: To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise — that would be unprecedented. (Source: Remarks on his nomination to the Supreme Court.)
Sen. Dick Durbin, March 16: Well, I can tell you that two-thirds of the American people think Senate Republicans are being unfair, that they aren’t doing their job, they aren’t living up to their constitutional responsibility. … The American people, two out of three, believe this nominee from the president deserves a hearing and a vote — two out of three, including about a majority of the Republicans feel that way. So let’s face facts here. (Source: MSNBC “All In With Chris Hayes” video.)
Sen. Charles Schumer, March 16: With such a qualified man, with the American people overwhelmingly of the view that there ought to be a hearing and a vote – if people vote no after that, so be it – I think it has been a very, very strong day for this choice. (Source: CNN “The Lead with Jake Tapper” transcript.)