Judiciary

Can Susan Collins afford political gamble to back right to choose?

First there was Greece. Then Spain. Then Venezuela. Now Republican Senator Susan Collins of Maine. All fell victim to leveraging too much on debt too long without making the inevitable difficult decisions. In the case of the first three, it was revenue. In the case of Collins, it is Roe v. Wade. All found that they could not maintain a financial or political position over the long run with either skeptical creditors or angry voters.

For more than a decade, Collins has secured bipartisan support as a moderate promising to be a steadfast vote in protecting the right to choose from any nominee who does not support the 1973 ruling. She has declared that she "would not support a nominee who demonstrated hostility to Roe v. Wade." Time has now run out for Collins, who faces a nominee widely viewed as hostile to Roe, nominated by a president who promised to only put Roe killing justices on the Supreme Court. The bill has come and Collins may not have the political capital to cover over a decade of political debt in actually voting against a Republican nominee.

Collins, along with Republican Senator Lisa Murkowski of Alaska, face incensed voters over their refusal to acknowledge what seems obvious to everyone else, which is that Donald Trump has delivered on his promise to appoint a nominee who is not friendly to Roe. Some 3,000 hangers representing back alley abortions have been sent to her office, and almost a million dollars has been raised on a crowdfunding platform which declares that, if Collins votes for Brett Kavanaugh, the money will go to "her future opponent" in a general election.

In fairness to both Collins and Kavanaugh, the refusal to answer questions on abortion is consistent with prior Supreme Court nominees. While I have long been a critic of the "Ginsburg Rule," nominees like Elena Kagan gave the same meaningless replies when asked about their views on Roe. Moreover, Democrats have overplayed a couple of references to Roe in the record as proof of Kavanaugh opposing the decision.

In a 2017 lecture at a Constitution Day event at the American Enterprise Institute, for example, Kavanaugh praised the dissent of the late Chief Justice William Rehnquist in Roe. However, he was praising the approach of Rehnquist to all unenumerated rights and his articulation of the high burden that must be faced by those claiming such rights. Kavanaugh never actually said he agreed with that particular ruling.

However, Kavanaugh did vote in dissent in Garza v. Hargan, the case of a young woman seeking an abortion. This case came a month after the Constitution Day event, and Kavanaugh voted in the majority in the appeals court ruling that the government could hold the girl to secure a "sponsor" so long as the girl is released "expeditiously." That meant the girl might have to wait 11 days to find a sponsor or, if no sponsor was found, be allowed to have the abortion. The opinion actually made clear that the government could not unduly burden her right to an abortion.

Finally, Democrats hit Kavanaugh for a 2003 email, when he worked in the White House under President George W. Bush, on an opinion piece to defend judicial nominees. The draft included a line that "it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land." Kavanaugh noted that he was "not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level" since the justices can always overrule its precedent and "three current justices" would do so. That is true but does not necessarily mean Kavanaugh would join them in such a vote.

Putting aside the misrepresentation of these prior positions as dispositive proof, it is equally dubious to accept his confirmation hearing statements as proof that Kavanaugh intends to maintain Roe. Collins has said she felt reassured when Kavanaugh told her that he considered Roe to be "settled law." That says absolutely nothing since, as Kavanaugh himself noted correctly that the Supreme Court "can always overrule its precedent." In other words, cases are "settled" in the judiciary until they are not.

As with nominees before Kavanaugh, his statements are more maddening than reassuring. When asked if the case was "correctly" decided, Kavanagh said that "Roe v. Wade is an important precedent of the Supreme Court" that has been "reaffirmed many times." That is like asking a lumberjack standing in front of an old oak with an axe whether he intends to chop it down, only to be told "this tree is old with deep roots." That is certainly information, but not the information you were seeking.

Most scholars believe Kavanaugh is likely to curtail Roe and its progeny. He has good faith reasons for questioning the basis for taking this issue from the states as part of an unenumerated right. His narrow interpretive approach tends to run counter to Roe and its constitutional foundation. It is less likely that the Supreme Court would outright overturn Roe. It can effectively kill Roe with a thousand papercuts, upholding procedural and substantive limitations on the right imposed by the states.

This all brings us back to Collins. She has avoided answering questions from reporters while issuing statements that she has not been expressly told that Kavanaugh has it out for Roe. Given his consistent interpretative approach and the widely held view that Kavanaugh is hostile to Roe, Collins risks looking like a senatorial Sergeant Schultz, running through the halls insisting she knows nothing. For many voters on both sides of the abortion rights issue, the very public stand that Collins has taken on principle now appears painfully artificial and convenient.

It is clear that Collins will not consider herself bound by her pledge absent an outright declaration of lethal intent by a nominee. Such a confession from a conservative nominee is about as likely as a liberal nominee declaring an intent to bar any state law affecting abortions. If Collins is not willing to read a record for the likely approach of a nominee, her signature pledge is practically meaningless. Going back to the tree, either you can read likely intent from the fact that the lumberjack is holding an axe, or you can focus on the fact that the tree is still standing.

Collins taking an artificial position reflects a broken Senate confirmation process that has become little more than an empty exercise. These Supreme Court nomination hearings are primarily about the senators rather than the judges. Senators want cover for their votes, even in the denial of what seems abundantly obvious. Kavanaugh says Roe is settled and that could well settle the matter for Collins.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

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