SCOTUS Brief 4/19/2016
Poll Analysis: Public polling on Garland nomination highly misleading – Washington Examiner: Top Lawyer for EPA Cheered Garland Nomination in email – McClatchy: Scholars Agree, Senate leaders don’t have to consider Supreme Court pick
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- In a PollCheck piece for iMediaEthics, David Moore writes that public polling on the Merrick Garland nomination has been highly misleading.
PollCheck: Do Americans Really Want Merrick Garland Confirmed to the Supreme Court?
“In the aftermath of President Obama’s nomination of Appellate Judge Merrick Garland to the Supreme Court, several polls – conducted immediately after the announcement – suggested Americans were highly favorable to his being confirmed by the U.S. Senate. But a new iMediaEthics PollCheck survey suggests these polls were highly misleading, that a more realistic assessment of public opinion finds most Americans unsure whether the judge should be confirmed, and that people with strong views are about evenly divided on the issue. All four polls – by Gallup, CNN/ORC, Quinnipiac and Pew – started their interviewing within two days of the announcement, leaving little time for the public to learn much about the nominee. But with the forced-choice question format (no explicit “unsure” option offered to the respondents), the polls were able to elicit top-of-mind responses from 75 percent to 85 percent of the public. As part of our PollCheck series, the current iMediaEthics poll was designed specifically to test the results of the other polls. Given the slightly different wording among the four, we chose the exact wording that Pew used, and the same polling organization used by Pew – Princeton Survey Research Associates International (PSRAI) – to conduct our interviews…When people participate in a poll, they know they’re expected to have opinions and to share them with the interviewers. But research has shown that many people who express views in the context of a poll may not care very much whether those views actually prevail. Such respondents give a top-of-mind reaction to fulfill their perceived obligation in the context of a survey, but subsequently admit that they wouldn’t be upset if the opposite happened to what they just expressed. In the iMediaEthics poll, respondents who said they wanted Garland confirmed were then asked how upset they would be if he were not confirmed. About a quarter said they would not be upset if that happened.”
- The Washington Examiner’s Kyle Feldscher writes the General Counsel for the EPA cheered the nomination of Merrick Garland, citing several decisions by the judge favorable to the agency, in an email obtained by America Rising through the Freedom of Information Act.
Washington Examiner: Email: Top EPA lawyer supports Obama Supreme Court pick
“The top lawyer at the Environmental Protection Agency was cheered by President Obama’s nomination of Judge Merrick Garland to the Supreme Court, noting his environmental credentials after being told the news. According to an email obtained by America Rising Advanced Research through a Freedom of Information Act request, Avi Garbow, general counsel at the EPA, reacted favorably to being told of Garland’s nomination. After being sent notes from a Cabinet meeting on March 16 during which White House Chief of Staff Denis McDonough told top officials of Garland’s impending nomination, Garbow said Garland is ‘eminently qualified’ and noted his pro-environmental views. ‘By so many accounts, Chief Judge Garland is eminently qualified and will be an exceptional nominee,’ Garbow wrote in the email. ‘He also happened to be on the panel that both upheld [Mercury and Air Toxic Standards] prior to [Supreme Court] review, and also voted for remand without vacatur more recently.’ The ‘remand without vacatur’ ruling refers to a decision by the D.C. Circuit Court of Appeals to leave the Mercury and Air Toxic Standards in effect while the regulation was sent back to the EPA for changes demanded by the Supreme Court.”
- McClatchy’s William Douglas writes that congressional and legal scholars agree that the Senate has no obligation to consider President Obama’s lame duck nomination of Merrick Garland.
Scholars agree: Senate leaders don’t have to consider Supreme Court pick
“So what gives Senate Majority Leader Mitch McConnell the right to block Senate consideration of Judge Merrick Garland, President Barack Obama’s pick to the Supreme Court? The U.S. Constitution, say several congressional and legal scholars. Even dissenters acknowledge the Senate can pretty much do what it wants…’The Senate majority leader has discretion with regard to organizing the Senate floor business,’ Gerhardt said. ‘There is clearly a Senate authority to give its advice on nominations. It is not uncommon for senators to construe that as essentially two things, one of which is giving their advice. But it could well be withholding their advice’…Roger Pilon, founder and director of Center for Constitutional Studies at the libertarian-leaning Cato Institute, agrees that McConnell and Grassley are interpreting their constitutional prerogatives correctly. The Constitution does not direct the Senate to take action, one way or the other, he said. ‘Here, the Republicans are very clear that they’re not going to confirm,’ Pilon added. ‘So what’s the point in holding hearings, what’s the point in going through the motions? Nothing will come of it.’”
