The lack of polling in the state has been welcomed, up to now, by Republicans — many say that Brown has the best chance at an upset win if Democrats, thinking the race is already in the bag, don’t come out to vote. But with the release of a poll this week, even if it’s from a pollster whom Democrats don’t quite trust, both sides are going to get a better picture of their chances.

UPDATE: On cue, a Democratic strategist has a little fun with the news, telling me that “I’d guess that, being Rasmussen, it’ll have a 10-point race.”

Harold Koh at an April 28 Senate confirmation hearing (Zuma Press)

On Monday, nearly four months after President Obama nominated Harold Koh to become legal adviser to the State Department, Sen. Harry Reid (D-Nev.) filed cloture and moved his nomination to the floor. Confirming the dean of Yale Law School to a powerful but usually uncontroversial position had proven harder than either his supporters or his detractors could have expected.

“When you consider Dean Koh’s impressive resume,” said Steven Groves, a fellow at the Heritage Foundation who signed a conservative coalition’s letter opposing Koh’s nomination, “this process should have been more of a coronation than a fight. It’s only become a fight because serious issues were raised on his views of transnational law.”

Image by: Matt Mahurin

Koh’s qualifications for the State Department job have never really been in dispute. A veteran of both the Reagan and the Clinton presidencies, a summa cum laude graduate of Harvard Law School who counts Sen. Russ Feingold (D-Wis.) and Alan Dershowitz among his friends, Koh’s nomination was welcomed by several influential Republican lawyers. Ken Starr, the former Clinton foe who is now Dean of Pepperdine University Law School, remembered Koh as a “vigorous adversary” but commended him to the U.S. Senate as a “truly great man of irreproachable integrity.” Ted Olsen echoed Starr, calling Koh a “brilliant scholar and a man of great integrity.” John Bellinger, who served as George W. Bush’s final legal adviser to the State Department, welcomed Koh as a “well qualified” candidate who “should be confirmed.”

After all of that came months of attacks, wrangling, and stale-mating over Koh’s thinking on “transnational” law and belief that American jurisprudence should respect for “the opinions of mankind,” as he put it in 2002. This reached a certain level of farce last week, when Koh’s brother Howard was confirmed, controversy-free, to a post in the Department of Health and Human Services. And the saga may or may not end with Koh’s confirmation. The majority leader is “optimistic we will have the 60 votes needed,” according to spokesperson Regan Lachappelle. But on Monday afternoon, Reid saw that Republicans “would not agree to an up or down vote” and that Democrats had “no choice but to file cloture.” All sides expect a contentious, tip-and-tuck vote, and Democrats are prepared for a debate that could last several days if outspoken opponents of the nomination such as Sen. Jim DeMint (R-S.C.) decide to drag out the process.

Whatever the result of the vote, conservatives are ready to declare some small victories. Koh, long seen as a possible nominee for the Supreme Court, has been widely portrayed as a judicial radical and supporter of international law who — in the words of Fox News host Glenn Beck — “may shred the Constitution in favor of international law.” In the process, a small group of conservative activists have moved ahead the idea that American sovereignty is under attack from international treaties. Some argued that the delays revealed a lack of confidence from congressional Democrats that they could win a pitched, public debate over “transnationalism,” although the filing of cloture on Monday suggested that Democrats are ready to take some heat over an issue that remains fairly obscure.

The Koh nomination became a cause for some conservative activists despite — or perhaps because of — early support from Sen. Richard Lugar (R-Ind.), the ranking member of the Senate Foreign Relations Committee. At the April 28 hearing on the nomination, Lugar read apologetically from a Time magazine article on right-wing attacks from the likes of Glenn Beck and John Bolton. “Without going into the problems of the Republican Party any further,” said Lugar, to audible laughter, “there is some substance to this type of atmosphere that has been created, not only in the blogosphere but in Time Magazine and elsewhere.” Lugar explained that the primacy of the Constitution was “a source of concern for many Americans.”

Koh argued that his much-cited work on “transnational” law should not present much cause for concern. “The basic theme of all of my writing,” he said before the committee, “is that a partnership between the president and Congress protects our foreign policy and supports our Constitution, and that a partnership with our allies — done well, correctly, within the law, protects our sovereignty and makes us safer.”

It was immediately clear that Koh would not get the same deference from the rest of the committee’s Republican members. Conservative activists and lawyers who were familiar with the long campaign against Koh — one recalled speaking at as many as a dozen meetings on the risks his nomination presented — were active in providing skeptical Republicans with quotes from Koh’s speeches and troublesome arguments such as his 2004 statement that the United States had joined an “axis of disobedience” in flouting international law. At the April 28 hearing, Sen. Bob Corker (R-Tenn.) informed Koh that he had been “watching the body language” and saw the dean “reading the answer” about international law. “You know, you’re the dean of Yale Law School and probably one of the most knowledgeable people to ever come before this group as it relates to law. But it did appear to me that you were reading that answer and I’m just wondering if you might speak to that, because typically, when people do that they’re sort of tight roping down an issue that they’re concerned there may be some baggage on. Maybe I saw wrong.”

In the end, Lugar was the only Republican member of the committee to vote for Koh. On Monday, his spokesman Andy Fisher confirmed that Lugar would vote for Koh, and that “nothing had changed” since the hearing. Spokesmen for the other Republicans on the committee did not comment to TWI. But conservative activists outside of the Senate, who still see a possibility of defeating Koh (“he could wash his hands of the whole thing and go back to Yale,” said one activist), said that the new attention on “transnational” law and the possibility of slowing down Senate business made the battle worthwhile. (One activist, who was interviewed by TWI before Democrats moved for cloture, speculated that Republicans could “get something,” such as a delay in the ratification of the Law of the Sea Treaty, if they made some demands of Democrats.)

“Since the administration is trying to do a serious number of bad things,” explained Grover Norquist, the president of Americans for Tax Reform who signed a letter opposing Koh’s nomination, “everything that slows it down stops another bad thing it wants to do. Now, there is an argument against just saying ‘no’ or just stalling on everything. That is why, ideally, you can have a fight about an issue — Harold Koh’s thinking on international law is a serious issue that affects gun rights, for example — and you can slow the bad stuff down. That’s the best of both worlds.”

While conservatives argued that Koh’s views could become a flash point for more controversy — something Democrats seemed to acknowledge by holding off for so long on a debate and a vote — there is no evidence that a battle in the Senate would boost Republicans. In 2005 and 2006 the party invested plenty of political capital in the nomination of John Bolton for U.S. ambassador to the United Nations, and they were bolstered by the kind of outside pressure groups that never arose to promote Koh. Still, polling revealed that Bolton’s firey rhetoric and denunciations of international law did not win over voters.

“The odds are against it becoming a defining feature of the national debate,” said Scott Rasmussen, an independent pollster who has conducted surveys about Americans’ views of international law and the United Nations. “But if you were a Senator in a competitive race, would you want a 30-second commercial saying you voted for a nominee who wants Americans to live under international law?”

Even if Koh is confirmed this week, one activist who had met with Republicans about the nomination was confident that the State Department’s work had “not moved as fast as it could have” in strategizing for the ratification of new treaties as a result of the slowed-down process. John Bellinger, the former Legal Advisor who still supports Koh’s nomination, confirmed that analysis. “It will be difficult,” he said, “for the career lawyers [in the State Department] to take new or potentially controversial positions on international law or domestic litigation issues without guidance from a new political appointee.”

Polling data show that Mr. Obama’s approval rating is dropping and is below where George W. Bush was in an analogous period in 2001. Rasmussen Reports data shows that Mr. Obama’s net presidential approval rating — which is calculated by subtracting the number who strongly disapprove from the number who strongly approve — is just six, his lowest rating to date.

The rest of the column is a recap of Rasmussen’s other polls, which show the president’s agenda strikingly unpopular. Let’s assume that’s true, and all other polls about Obama are wrong. Why, then, are Republicans faltering in the first competitive race of 2009 — the open House seat in New York’s 20th Congressional District? Why does the Siena poll just released in that race record a 65 percent approval rating for Obama in a district where he only won 51 percent of the vote over John McCain’s 48 percent?

UPDATE: Scott Rasmussen e-mails me to say that his topline polling, the 56-43 Obama approval number, is in line with other polls.

We’ve shown the President at 56 percent to 58 percent approval for the past few days. Quinnipiac, Cook, and Newsweek all have him in the exact same range. A few firms have him in the low 60s to bring the average right about 60. Since we are polling likely voters, you would expect the numbers to be a few points lower than a survey of adults. On top of that, the trend is just about identical in our polls. Gallup shows the President down five or six points since Inauguration Day and so do we.

Still, “down five or six points” is a more moderate assessment of Obama’s popularity than appears in this column, illustrated with a cartoon of Obama hurtling down to earth.

Scott Rasmussen of Rasmussen Reports

Last week, as they’ve done every week for nearly two years, New Jersey-based Rasmussen Reports cycled a question about Congress into its nightly political tracking poll. Over two nights, around 1000 voters (they must be voters, or say they are, to be included in the poll) were asked by an automated, voice-activated pollster whether they they would support a Democratic candidate or a Republican candidate for Congress, were the election held today.

Image by: Matt Mahurin

The result was surprisingly close. Only 40 percent of the voters who talked to Rasmussen Reports said they’d support the Democrats, while 39 percent said they’d support the Republicans. “Are Republicans winning the public relations battle over spending in the $800-billion-plus economic stimulus package?” asked company founder and publisher Scott Rasmussen in the company’s news release. “This marks the lowest level of support for the Democrats in tracking history and is the closest the two parties have been on the generic ballot.”

The question, the result, and the carnival barker spin-all are trademarks of Rasmussen Reports, a pollster that has become ubiquitous in the conversation of Republicans and conservative pundits. It is not a partisan polling firm, and it is not hired to ask partisan questions the way that, for example, John Zogby was hired to test the mocking anti-Obama questions of a conservative radio host. Rasmussen is influential because its carefully crafted questions that produce answers that conservatives like — 59 percent of voters agreeing with Ronald Reagan’s view of big government, a 10-point plurality of voters trusting their economic judgment over President Obama’s — are bolstered by highly accurate campaign polling. The result is that polls with extremely favorable numbers for Republican stances leap into the public arena every week, quickly becoming accepted wisdom.

Rasmussen and three members of his staff meet every morning to discuss what questions they can add to their daily tracking polls of politics, consumer confidence, and consumer spending. “If you were working at an old newspaper,” explained Rasmussen in a Monday telephone interview, “you’d ask a question and assign reporters to find out what people were thinking. That’s what we do with our polls; we say, let’s take the temperature of this issue or that issue.”

While those news-cycle-dependent questions bring plenty of attention to the company, the rolling congressional “generic ballot” poll provided a good example of Rasmussen’s influence. On “The Beltway Boys,” the Saturday evening Fox News show that Weekly Standard editor Fred Barnes co-hosts with Mort Kondracke, Barnes cited Rasmussen as proof that Republicans were winning the stimulus message war. “Look where Republicans come out,” said Barnes. “They come out one point behind the Democrats. The Democrats have only a one-point lead!”

On Sunday, Cokie Roberts cited the same numbers to explain to her fellow “This Week” panelists why Republicans opposed the stimulus. “They’re… looking at polls that are showing them about even with Democrats in the generic congressional match up,” said Roberts. Neither she nor Barnes cited Rasmussen by name — the polling result, mentioned frequently by Republicans, had become part of conventional wisdom.

Other pollsters, whose results sometimes vary greatly from Rasmussen’s, respect the rival firm’s process and its ability to grab headlines. Brent Goldrick, a vice president at Financial Dynamics who conducts the monthly Hotline-Diageo poll, was surprised at the closeness of Rasmussen’s generic ballot poll. His most recent poll, conducted in the days after President Barack Obama’s inauguration, gave Democrats a 46-22 lead in the Congressional generic ballot, and gave Democrats in Congress an approval rating 23 points higher than the Republicans. “As the Republicans have become a little more engaged in the policy debate,” said Goldrick, “it doesn’t surprise me that numbers would come up from 22 percent.”

It’s hard for pollsters to knock Rasmussen’s accuracy, especially its election polling. The final pre-election Hotline-Diageo poll had given Barack Obama a 50-45 point lead over John McCain, while the final Rasmussen Reports poll gave Obama a 52-46 lead. Both were close to the result, but Rasmussen was closest.

But where Rasmussen Reports really distinguishes itself, and the reason it’s so often cited by conservatives, is in its issue polling. Before the stimulus debate began, Rasmussen asked voters whether they’d favor stimulus plans that consisted entirely of tax cuts or entirely of spending. Tax cuts won every time, and Republicans began citing this when they argued for a tax-cut-only stimulus package.

Every week that the economic stimulus package was being debated by Congress, Rasmussen asked voters whether they “favor[ed] or oppose[ed] the economic recovery package proposed by Barack Obama and the Congressional Democrats.” While other pollsters, such as Gallup and CBS News, found stimulus support rising as high as 60 percent, Rasmussen never saw it rise above 45 percent. It was the only pollster to find support for the plan falling below opposition, in a poll conducted on February 2 and 3. Not only did Bill Kristol get an early look at the data and use it to make the case against the plan, Republicans such as Rep. Mike Pence (R-Ind.) cited Rasmussen to argue that support for the Democratic version of the stimulus was tumbling. At a Feb. 10 briefing, Pence quibbled with a reporter who cited Gallup instead of Rasmussen.

“If we’re gonna talk polls for a minute,” said Pence, “and in the communications shop at a conference we occasionally look at polls, is support for the stimulus bill has been dropping ever week since it was first introduced. I expect there’ll be more polls that come out that demonstrate that public support is continuing to drop using the same methods and the same research.” A poll being conducted that day and the day after would actually reveal that President Obama’s campaign for the stimulus was driving its support back up into the mid-40s. Still, the Rasmussen poll, buttressing other media polls that showed stimulus support lagging the president’s own ratings, was invaluable to Republican arguments that they were standing with the country against an unpopular bill.

Scott Rasmussen is well aware of how Republicans use his polling to make their arguments. “Republicans right now are citing our polls more than Democrats because it’s in their interest to do so,” he said on Monday. “I would not consider myself a political conservative — that implies an alignment with Washington politics that I don’t think I have.”

But in the early days of his polling firm, when it was named Rasmussen Research, Rasmussen balanced a cold analysis of politics and consumer opinion with advocacy for some conservative views. For a short time around the 2000 elections he wrote a column for WorldNetDaily, once arguing that President Bill Clinton had “ratified the Reagan Revolution” by declaring the end of big government in Clinton’s 1996 State of the Union speech. “From that moment forward,” wrote Rasmussen, “both Republicans and Democrats began to fight over their policy differences within the political framework created by America’s voters and articulated by President Reagan.”

In other columns, and in a 2001 company-published book titled A Better Deal! Social Security Choice, Rasmussen made the case for privatizing the nation’s oldest entitlement program. “In fact, 46 percent of American adults say that relying on the government is riskier than letting workers invest for their own retirement,” wrote Rasmussen in a Jan. 10, 2001 column arguing that incoming President Bush should push for private accounts. “Just 36 percent say letting workers invest is more risky, while 18 percent are not sure.” In the book — not a huge seller, but promoted by Rasmussen at an August appearance at the libertarian Cato Institute — the pollster argued that “giving workers more control over their ‘contributions’ will put the ‘Security’ back in Social Security.”

Since then, Rasmussen’s business has boomed, aided in no small part by those “newspaper” questions that are blasted out to reporters and frequently buck up the Republican spin of the week. “Every pollster wants to promote his own research,” said Brent Goldrick. “It makes sense for Rasmussen to promote questions that are more newsworthy.”

That was the take of Phil Kerpen, the policy director at Americans for Prosperity, a political advocacy group that collected more than 400,000 signatures of opposition to the stimulus. “He’s cited more frequently than other pollsters because he does more than anybody else,” said Kerpen. “His numbers are at least as accurate as anyone else’s. I think it was helpful to us when it looked like there was a big shift in public opinion against the stimulus. We definitely used it to give our activists some more encouragement.”

Scott Rasmussen couldn’t say whether his polls played a key role in the stimulus debate — after all, the bill passed. “But there have been times that our polling had an impact,” he said on Monday. “During the immigration debate, I think our polling — which showed the public heavily against the Senate compromise — was part of the reason that the compromise fell apart. The Senate acceded to public opinion. We’re simply reporting on what the public wants.”