A Majority Of Voters Oppose President Trump Filling The Vacancy On the Supreme Court
By Danielle Deiseroth and Ethan Winter
As part of a September survey put into the field shortly after the news of the death of Supreme Court Justice Ruth Bader Ginsburg became public, Data for Progress asked likely voters a series of questions about the Supreme Court, including whether or not the vacancy should be filled -- either before the election or after the election but before the new Congress is sworn in -- and whether they would support or oppose potentially adding new seats to the court if a Republican pick does go through.
We first asked likely voters about their views on how to address the vacancy caused by Supreme Court Justice Ruth Bader Ginsburg’s death on Friday, September 18. A majority of voters (53 percent) agree that the seat should be filled after the upcoming election in order to give voters a say in the process. However, opinions diverge sharply according to partisan self identification: A majority of voters who self-identify as Democrats (82 percent) agree that President Donald Trump should not fill the seat while a majority of voters who self-identify as Republicans (71 percent) agree that Trump, along with Senate Republicans, should fill the vacancy now because they do possess this authority according to the Constitution.
Voters also oppose Trump and Senate Republicans using the time between the November election and the swearing in of the new Congress in January 2021 -- a period of time often referred to as a “lame duck” session -- to fill the vacancy on the Supreme Court if Democratic nominee for President Joe Biden wins the presidency in November. More specifically, voters oppose this course of action by a 13-percentage-point margin (51 percent oppose, 38 percent support). Again, voter opinions correlate with partisanship. While a majority of Democrats (77 percent) think no appointment should be made during the lame duck session, a majority of Republicans (63 percent) think Trump and the Senate should proceed with filling the vacancy. However, nearly a quarter of Republicans (24 percent) think no confirmation should be made during the lame duck session.
If Trump attempts to fill the Supreme Court vacancy before the November election, some voters express support for protesting. Forty percent of all voters express support for taking action: Sixteen percent say they will protest if Trump attempts to fill the Supreme Court vacancy before the election, and 24 percent say they support potential protests but would be unable to participate. Support for protests is highest among Democrats, as 22 percent say they will protest and 41 percent say they will support the protests but would be unable to participate. Among Republicans, 13 percent say they will protest, and only nine percent say they will support the protests but would be unable to participate.
The vacancy on the Supreme Court does incentivize more voters to vote in the upcoming election. Nearly a third (33 percent) of voters say they are more likely to vote in the November election because of the Supreme Court vacancy. The Supreme Court vacancy is more galvanizing for Democrats than Republicans, though just narrowly: Thirty-nine percent of Democrats say they are more likely to vote in the November election because of the Supreme Court vacancy, compared to 32 percent of Republicans.
We then asked voters if they would be more or less likely to support a U.S. Senate candidate who votes to confirm a Supreme Court justice who pledges to overturn Roe v. Wade, a 1973 Supreme Court ruling that affirmed access to safe and legal abortion is a constitutional right. A plurality of voters (38 percent) say they are less likely to support a Senate candidate who votes to confirm a Supreme Court justice who opposes Roe v. Wade, including a majority of Democrats (52 percent). However, a plurality of Republicans (40 percent) say they would be more likely to support a Senate candidate who votes to confirm a justice who opposes Roe v. Wade, evidence of the partisan divide around the issue of abortion.
Some Democrats are now calling for “expanding the court” -- that is, adding more than nine Justices to the court -- if Republicans proceed with an attempt to fill the vacancy. On the Data for Progress blog, Mondaire Jones, the Democratic nominee for New York’s 17th congressional district, called for this proposal. Representative Jerry Nadler (D-NY), Chairman of the House Judiciary Committee, echoed this call, saying that if Republicans attempted to use the lame duck session to appoint a Justice, Democrats must proceed with a program of court expansion. However, voters are split on expanding the Supreme Court in this scenario, as 40 percent of voters say they support this proposal and 39 percent of voters say they oppose it. While a majority of Democrats (58 percent) support expanding the Supreme Court, a plurality of Republicans (49 percent) oppose this proposal. Still, many voters are making up their mind, with 20 percent reporting that they don’t know whether they support or oppose the proposal.
Voters are also concerned about what the consequences of a 6 - 3 Republican majority on the court would be for future rulings on healthcare, reproductive rights, and climate change. Among all voters, 63 percent say they’re either “very” or “somewhat concerned” about the potential conservative direction of the court. Levels of concern correspond with partisanship: A clear majority (58 percent) of Democrats say they’re very concerned, while a majority of Republicans (61 percent) say they are not concerned.
If the Republican Party succeeds in appointing a Republican Justice and the Democratic Party either fails to win back control of the Senate and the White House in November or then fails to act upon that victory, it is likely that control of the Judicial branch will remain with the Republicans for thirty years, if not longer. From that position, Republicans will be in the position to strike down the Affordable Care Act, further erode abortion rights protected by Roe v. Wade, and continue de-regulating corporations and monopolies that dominate our economy. The stakes could not be more high.
Thankfully, a majority of voters do not want Republicans to fill the vacancy before the election. Our new findings are in line with a new Morning Consult and Politico poll showing that 50 percent of voters want the winner of the November election to pick the next Supreme Court Justice. Data for Progress also finds that many voters are prepared to participate in protests in an attempt to prevent a confirmation of a Republican Justice. Concern over what a 6 - 3 conservative majority would mean for healthcare, reproductive rights, and climate change runs high.
We are only three days removed from the death of Ginsburg and voters’ opinions are still taking shape but, at least initially, there is clear, majority opposition to Republicans trying to fill the vacancy.
Authorship & Methodology
Danielle Deiseroth (@danielledeis) is the Climate Data Analyst for Data for Progress.
Ethan Winter (@EthanBWinter) is an analyst at Data for Progress. You can email him at ethan@dataforprogress.org.
From September 18 through September 19, 2020, Data for Progress conducted a survey of 1,104 likely voters nationally using web-panel respondents. The sample was weighted to be representative of likely voters by age, gender, education, race, and voting history. The survey was conducted in English. The margin of error is +/- 2.9 percentage points.