Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill September 6, 2018 in Washington, DC.
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02:54 - Source: CNN
CNN  — 

First things first: The theme song of the week is Life Goes On by Billy Vera from the television show “Empty Nest.”

Poll of the week: A new NBC News/Wall Street Journal poll finds that 34% of Americans support the confirmation of Brett Kavanaugh to the Supreme Court, while 38% are opposed.

This poll is in line with a recent poll from Gallup in which 39% of Americans were for confirmation and 42% were opposed.

What’s the point: Kavanaugh is the least liked Supreme Court nominee since Robert Bork in 1987.

Kavanaugh’s low ratings will no doubt give fuel to opponents. Interest groups are trying to convince moderate Democrats and Republicans to vote against him. If they can use these polls to persuade senators that it’s electorally harmful to vote for Kavanaugh, it could help their cause.

These polls could also potentially be bad news for the Supreme Court were Kavanaugh to be confirmed. Although the Supreme Court is an unelected body, it still needs the public to be confident in it. That is, studies show that the court is at its most powerful when it follows public opinion.

If Kavanaugh were confirmed and issued controversial opinions, his low popularity could hurt the public’s confidence in the court.

Yet, it would be a mistake to assume that just because Kavanaugh is the least popular Supreme Court nominee in a generation that it means he isn’t going to be confirmed.

Yes, it is true that the less popular nominees for the court have tended not to be confirmed. Bork, the only other nominee with polling as bad as Kavanaugh’s, was voted down by the Senate.

Bork, though, was a conservative appointed by a Republican when he faced a Democratic-controlled Senate.

Kavanaugh is facing a Republican-controlled Senate. Not only that, but the Republican senators of today are statistically less likely to vote against their party than they were in 1987.

The fact that the Senate is majority Republican is why I’ve been skeptical that Kavanaugh would be voted down. Using a model that looks at all nominations since Bork, I calculated that Kavanaugh would probably need to be at least as unpopular as Bork to be voted down. He isn’t at this point. Of course, that could change over the next week.

Further, it should be pointed out that Kavanaugh’s numbers aren’t toxically bad right now. His net confirmation numbers (confirmed - opposed), -4 points in the NBC/Wall Street Journal poll, are still far better than President Donald Trump’s net approval ratings nationally.

Republican senators may actually find that it is more electorally dangerous to vote against him. In fact, even as Kavanaugh’s numbers have declined among the public at-large over the last month, his numbers among Republicans have gone up. Among Republicans, his net confirmation rating stands at +69 points.

Now could Democrats potentially turn Kavanaugh into a campaign issue with swing voters given the national polling? It’s certainly plausible, though it’s unclear how effective that would be.

The New York Times/Siena College have been examining voter viewpoints on Kavanaugh in battleground House races over the last week. They’ve mostly found that more voters are more in favor of confirmation than opposition.

For instance, their poll in Iowa’s 1st district gave the Democratic candidate for Congress a 14-point advantage and put Trump’s net approval rating (approval - disapproval rating) at -16 points.

Yet, despite anti-Republican feeling in the district, 45% favored Kavanaugh’s confirmation and 41% opposed it.

Some other Times polls have found more negative sentiment towards Kavanaugh, though the majority have him in positive territory.

Now, the Kavanaugh’s confirmation process trajectory could change over the next week. It’s a developing story.

For now though, Kavanaugh is unpopular, but not so unpopular that it’s clear that his popularity will alter either his chance of being confirmed or Republicans’ fortunes in the midterms.