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Poll: Majority of Americans say diversity should be a factor for Supreme Court nomination


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WASHINGTON – What's clear is that President Joe Biden will make history in coming days when he announces his nominee for the Supreme Court, marking the first time a Black woman has ever been chosen to serve on the nation's highest court. 

What's less certain: How the nation feels about it.

A wide majority of Americans believe diversity should be at least one factor a president considers when weighing nominees for the Supreme Court, but the country remains deeply divided over just how much race and gender should matter in those decisions, according to a new Paste BN/Suffolk poll.

Biden appears to be closing in on a candidate to replace Associate Justice Stephen Breyer, who will retire in June after nearly three decades on the court. The president has promised to reveal his choice by the end of the month and has repeatedly described the nomination of a Black woman to the high court as "long overdue."

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A third of Americans say diversity on the high court should be "an important factor" for nominees while another 11% say it should be the main factor, according to the poll of 1,000 likely voters, conducted Feb. 15-20. Twenty-nine percent of respondents said diversity should be "just one of many factors" that a president considers. 

Just more than two in 10 Americans said diversity shouldn't be a factor at all.

"I'm encouraged by it," said Taneisha Means, a political scientist at Vassar College who studies the intersection of race and judicial politics. "It suggests that people are confirming that they see diversity as significant for our judicial system."

A number of polls in recent weeks have underscored the nation's longstanding struggle not only with racial politics but with how to discuss those issues in a time of hyper-partisanship. An ABC News/Ipsos poll in the days following Breyer's retirement announcement showed that 23% of Americans wanted the president to "consider only nominees who are Black women" versus 76% who said Biden should "consider all possible nominees." 

Some criticized the framing of the question as forcing respondents to choose between Biden’s promise to make the court more diverse and the nominee’s qualifications.

A Yahoo News/YouGov survey earlier this month found that 55% percent of Americans thought it was "not very" or "not at all" important that the president names a Black woman to the high court. Just under half said it was "somewhat" or "very" important. 

It's not clear how those views might affect the confirmation process, which Democrats have indicated they hope will be completed by Easter. Some Senate Republicans criticized Biden's focus on diversity – with one comparing the president's vow to affirmative action – but GOP leaders have largely steered around that line of attack. 

"I heard a couple of people say they thought it was inappropriate for the president to announce he was going to put an African American woman on the court. Honestly, I did not think that was inappropriate,” Senate Republican Leader Mitch McConnell said earlier this week during an event in Kentucky. 

How Americans feel about Biden's pledge is, perhaps not surprisingly, influenced by both race and party identification. Fifty-six percent of African American respondents said that diversity should be the main or an important factor in selecting a nominee, for instance. But only about four in 10 white Americans felt that same way.

Nearly a quarter of white Americans say diversity shouldn't be a factor at all in Biden's choice, but only 9% of Black Americans agreed.   

The poll has a margin of error of plus or minus 3.1 percentage points.

Often overlooked in the parsing of Biden's history-making nomination is that the qualifications of the candidates the president has been considering are consistent with past nominees by other presidents. U.S. Circuit Judge Ketanji Brown Jackson is a Harvard Law grad who clerked for Breyer; California Supreme Court Justice Leondra Kruger went to Yale Law School and clerked for Associate Justice John Paul Stevens. 

"I think the American people recognize that President Biden is considering eminently qualified judges all of whom would make remarkable Supreme Court justices," said Daniel Goldberg, legal director at the liberal Alliance For Justice. In addition to that, Goldberg said, most Americans can also recognize that one "important consideration is that the Supreme Court reflects the diversity of America."

Kruger: Profile of California Supreme Court Justice Leondra Kruger

Jackson: Profile of U.S. Circuit Judge Ketanji Brown Jackson

Childs: Profile of U.S. District Court Judge J. Michelle Childs

Biden's nominee, assuming she is confirmed, would join the court at a moment when many Americans appear to be losing faith in the idea that the federal judiciary is the one branch of government free from political calculations. After years in which Chief Justice John Roberts embraced an incremental movement to the right the high court's new 6-3 conservative majority appears to be in much more of a hurry.

A majority of the justices has already signaled a desire to reconsider Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and to fundamentally limit the ability of local governments to regulate the open carrying of handguns. More recently, the justices have decided to revisit past decisions on affirmative action in college admissions and wade back into the issue of protecting minority voting rights.

Just 37% of Americans believe the justices act in a "fair and nonpartisan way," the Paste BN/Suffolk poll showed. By comparison, 45% say the Supreme Court justices reflect the politics of the president who selected them. That, at least, appears to be a matter of common ground in a country where people don't agree on much else happening in Washington: The responses from Republicans and Democrats were nearly identical.