Poll: Most Voters Oppose Picking Supreme Court Justices Based on Race and Gender

From left, Supreme Court Associate Justices Brett Kavanaugh, Neil Gorsuch, and Elena Kagan
AP Photo/Andrew Harnik

A majority of voters do not think Supreme Court justices, who are tasked with a lifetime of knowing and upholding the U.S. Constitution, should be selected based on immutable characteristics like race and gender. 

According to a Rasmussen poll released on Friday, 61 percent of 1,000 likely U.S. voters surveyed on Jan. 26-27 “believe picking justices on the basis of race and gender is a bad idea.” However, 26 percent think making race and gender the “basis of choosing appointments” is a good idea, and 14 percent are unsure. The margin of sampling error is +/- 3 percentage points with a 95 percent level of confidence.

The survey results coincide with Justice Stephen Breyer’s retirement announcement and President Joe Biden’s vow to nominate a black woman to replace Breyer on the bench. Biden originally committed to nominating a black woman to the Supreme Court — should the occasion arise — when he was campaigning for president in 2020. Biden on Thursday said he plans to announce a nominee by the end of February. 

A majority of voters — 59 percent — expect Biden to follow through with his campaign promise to nominate someone based on their gender and race. Only 19 percent do not think he will follow through with a race-based nomination, and 21 percent are not sure. A majority of Republicans (52 percent), Democrats (72 percent), and unaffiliated voters (53 percent) expect Biden to nominate a black woman to the Supreme Court, however, Democrats are much more likely to approve of Biden letting race and gender define who he chooses. 

Nearly half of Democrats — 47 percent — “think it’s a good idea to make race and gender the basis of choosing appointments to the Supreme Court.” In stark contrast, only 11 percent of Republicans and 16 percent of unaffiliated voters agree. Eighty-two percent of Republicans, 37 percent of Democrats, and 66 percent of unaffiliated voters think picking a Supreme Court justice based on race and gender is a “bad idea.”

Unsurprisingly, Biden’s strongest supporters are in favor of choosing justices based on race and gender.

“Among voters who Strongly Approve of Biden’s job performance as president, 66 percent think it’s a good idea to make race and gender the basis of Supreme Court nominations, but among those who Strongly Disapprove of Biden’s performance, 95 percent think it’s a bad idea,” according to the report. 


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