Judiciary

Budowsky: Collins, Murkowski and Kavanaugh

The future of Constitutional rights for women and all Americans rests in the hands of Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska).  

Two questions surround the vote of Collins and Murkowski on the nomination of Judge Brett Kavanaugh to serve on the Supreme Court. First, should they insist the vote be postponed until after the midterm elections, or until the National Archives provides all appropriate records about Kavanaugh to the Senate? Second, should they support the Kavanaugh nomination, or only support a nominee who is truly in the swing-vote mold of retired Justice Anthony Kennedy, which Kavanaugh is not?

Collins and Murkowski should not support any nominee until after the midterm elections and after the National Archives provides all records relevant to Kavanaugh requested by leaders of both parties.  

In March 2016 then-President Obama nominated Judge Merrick Garland, who was widely praised by Republican senators, to serve on the court. Senate Republicans refused to consider Garland's nomination, a Draconian abuse of Senate rules that left the court with only eight justices for more than a year until President Trump's nominee Neil Gorsuch was confirmed in April 2017.

Now, Senate Republicans seek to force a confirmation vote before midterm elections that Democrats have a good chance of winning, and before the National Archives, which has shamefully refused to honor requests for records sought by Democratic leaders, even provides all information requested by Republican leaders.

The National Archives belong to the American people, not to Republicans. It should provide information sought by leaders of both parties before senators vote on the confirmation of a life-tenured justice. Collins and Murkowski can make this happen. Or not.

Regarding Roe v. Wade and countless critical issues, the question is not whether Kavanaugh claims he would respect judicial precedent. This means nothing in practice.

Kavanaugh's nomination is part of an aggressive conservative legal war waged against the views not only of liberal Supreme Court justices, but against the views of retired Justice Anthony Kennedy, views which often made him the swing vote.

Kavanaugh's nomination was offered by Trump, who is aggressively anti-choice and has a dismal record on civil rights, voting rights, human rights, equal justice and civil liberties.

Kavanaugh's nomination was advanced by The Federalist Society, not because he would be a swing vote justice like Kennedy, but because he would not be. I consider The Federalist Society to be brilliantly skilled legal adversaries representing a hard-line conservative legal philosophy and an aggressive movement to make the court an enforcer of conservative causes. 

Can Collins and Murkowski seriously believe that Trump and The Federalist Society would fight for a pro-choice nominee? Do they prefer to vote without being informed by hugely valuable information from the National Archives?

If Kavanaugh is confirmed, Collins and Murkowski would be joining a hard-line conservative legal movement that would escalate battles in states across the nation to enact regressive laws that would ultimately be decided by the Supreme Court, in some cases before the 2020 presidential election.

The conservative movement would escalate legal attacks against same-sex marriage, Planned Parenthood, voting rights for minorities, legal rights of immigrants, and Roe v. Wade and other hard-line conservative viewpoints. Which of these conservative crusades do Collins and Murkowski want to make the law of the land?

If confirmed, Kavanaugh would vote the way Trump and The Federalist Society expect. That is why he was nominated! 

Kavanaugh would cast tie-breaking votes that create national outrage from the majority of voters, especially women, who disagree with hard-line conservatives.  This backlash would plague Republicans in 2020 as the anti-Trump backlash plagues Republicans in 2018.

Kavanaugh would destroy Roe v. Wade without having to reverse it, by upholding so many attacks against choice that the decision would be effectively destroyed. Public views of the court would resemble public views of Trump.  

Collins and Murkowski must choose between being courageous moderate Republicans, or joining Trump and hard-line conservatives who detest moderate Republicanism in the party of Lincoln. They cannot choose both.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives. He holds an LLM in international financial law from the London School of Economics.

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