Opinion writer

Appearing on the Sunday shows, Sen. Susan Collins (R-Maine) plainly wanted to give some reassurance to her career-long backers that she had not gone wobbly on her support for Roe v. Wade. Recent statements had been ambiguous to say the least. Did she remove all wiggle room? Not really.

On ABC’s “This Week,” she explained her view on the already-disclosed list of judges reportedly vetted by the Federalist Society:

Martha Raddatz: You know, you talk about that list of 25. That list was made public — and I know you said you wanted the list expanded, the president has said he’s going to talk to six or seven people. But was there anybody on that list of those 25 that you outright objected to?

Collins: There are people on that list whom I could not support, because I believe that they have demonstrated a disrespect for the vital principle of stare decisis, which as Chief Justice [John G. Roberts Jr.] has said, is a fundamental principle of our judicial system that promotes even handedness and stability.  I’m not going to go into which ones those are, but there are people on that list whom I could not vote for. . . . I’m going to have an in-depth discussion with the nominee and I believe very much that Roe v. Wade is settled law, as it has been described by Chief Justice Roberts. It has been established as a constitutional right for . . . 45 years, and was reaffirmed 26 years ago.

So a nominee’s position on whether or not they respect precedent will tell me a lot about whether or not they would overturn Roe v. Wade. A candidate of this import position who would overturn Roe v. Wade would not be acceptable to me, because that would indicate an activist agenda that I don’t want to see a judge have.  And that would indicate to me a failure to respect precedent, a fundamental tenet of our judicial system.

Collins insisted President Trump would not ask a nominee directly about Roe, reiterating that “it would be inappropriate to ask a judge nominee on how they are going to vote in a future case.” She also said she “strongly disagreed with [Senate Majority Leader Mitch McConnell’s] decision to not proceed with a vote on President [Barack] Obama’s nominee, Merrick Garland,” but of course she ratified that strategy when she voted for Justice Neil M. Gorsuch. She thinks a confirmation vote before the midterms is not “unreasonable.”

On CNN’s “State of the Union,” Collins sounded less than emphatic about her defense of Roe when pressed by host Jake Tapper:

Tapper: A lot of women around the country are looking to you right now. Almost seven in 10 women, according to a new poll, want Roe v. Wade to stay intact. What do you say to those women who say, what are you going to do here? How are you going to protect this right?

Collins: Well, first of all, let me say that there’s big difference between overturning some precedents, such as Plessy v. Ferguson, which was overturned in the school desegregation case of Brown v. the Board of Education, versus overturning a ruling that has been settled law for 46 years — 45 years.

And it involves a constitutional right and has been reaffirmed by the court 26 years ago. Indeed, Justice Roberts has made very clear that he considers Roe v. Wade to be settled law.

I would not support a nominee who demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.

And I believe that that is a very important, fundamental tenet of our judicial system, which, as Chief Justice Roberts says, helps to promote stability and even-handedness.

Tapper: So, you will not support anyone who has demonstrated hostility towards Roe v. Wade, but there are plenty of justices that the Federalist Society and other experts likely think will vote to overturn Roe v. Wade, but they don’t have a record of hostility towards Roe v. Wade.

For instance, don’t you think, just as an academic matter, Neil Gorsuch, for whom you voted, don’t you think he is probably going to vote to overturn Roe v. Wade if given the chance?

Collins: I actually don’t.

I had a very long discussion with Justice Gorsuch in my office, and he pointed out to me that he is a co-author of a whole book on precedent. So, someone who devotes that much time to writing a book on precedent, I think, understands how important a principle that is in our judicial system. . . .

Tapper: I don’t have to tell you this, but you’re going to get a lot of pressure from groups and individuals who support abortion rights.

And one of the things that they think about you is that you get played by these judges and that, ultimately, if you vote to support whoever President Trump . . . nominates, presuming that person comes from this list of 25, that one of your longest-lasting legacies is likely going to be that you voted to confirm a justice who ultimately tipped the balance of power, political power, on the court and voted to overturn Roe.

Collins: Well, I know that’s what the left is saying. And that’s just so at odds with my record. I have, year after year, been named the most bipartisan member of the whole United States Senate. I have proved my independence.

It’s not just what the left is saying; it’s almost certainly true that a nominee able to pass muster with the Federalist Society and Trump is, in fact, going to vote to overturn Roe. That’s what these politicians and right-wing groups have vowed to do for decades; the hope of overturning Roe was their justification for putting up with Trump. Collins’s career does not give her cover to vote for a Trump nominee; to the contrary, she would betray voters, activists and donors who have supported her throughout her career because she was protective of abortion rights.

Even if Trump doesn’t ask nominees directly, I’d bet the farm that the Federalist Society’s vetters would not put anyone on the list unless they were certain he or she would reverse Roe. And even the term “reverse Roe” is misleading; a court need not explicitly state it is reversing a prior case in order to eradicate it. Courts can simply redefine the relevant legal standard/test, or change how the standard is to be applied in order to severely curtail, if not eliminate access to abortions in states that are inclined to pass onerous legislation.

Collins should not rationalize voting for a justice adept at creating ambiguity. The eventual nominee is on the list because savvy vetters know they will not be disappointed. Here’s a list of questions every nominee must be asked, if Collins and others truly care about unearthing the nominee’s beliefs:

  • Did anyone inside or outside the White House during or after the election ask you about how you’d rule or how you thought the court should rule on abortion or the right to privacy?
  • Please list every one of these people and what was said.
  • Did the president or any representative ask for a pledge of loyalty, a promise not to embarrass him or any such other phrase that might convey he wanted something in return for the nomination?
  • Is Roe settled law — meaning, is the right to an abortion a fundamental right inherent in the 14th Amendment’s protections that states may not encroach upon? Since a ban on abortions after 20 weeks would not be consistent with post-Roe precedent, would upholding such a law effectively be the same as reversing Roe?
  • Is there a right to privacy in the Constitution? Does it protect Americans who want to use contraception or seek an abortion?
  • The court this year overruled Abood v. Detroit Board of Education, a union-dues case decided in 1977 (Roe was decided in 1973), ending 40 years of precedent. Is that a correct application of stare decisis? Would you have joined the four dissenting judges and upheld mandatory union dues?

(Gorsuch voted with the majority. So much for his fondness for precedent, Sen. Collins.)

It should not be more complicated than this: Voting for a nominee on the Trump list (either the original 20, or the wider 25) opens the door to the criminalization of abortion. Collins might break her pledge and vote to confirm one of these judges approved by Federalist Society. That is up to her. But she should fool no one that voting for one of these judges would not amount to reversing Roe. Oh, and the Federalist Society judge-pickers must be called to testify under oath, and all notes, documents and other materials relating to their selection process must be subpoenaed for review. I bet that’d be fascinating.