Collins and Murkowski were already at a disadvantage in insisting that the president — who vowed to antiabortion voters that he would put a judge on the court who would reverse Roe, and who worked off a list assembled by conservative activists dedicated to reversing the 1973 law — instead nominated someone who is going to maintain the status quo. Even if you think President Trump could be duped, the Federalist Society knows exactly how to separate staunch “originalists” from judges who are merely conservative.
The two senators didn’t get much cover when Kavanaugh’s fig leaf — namely that Roe is “settled law” — disintegrated when an email revealed that Kavanaugh is well aware of the argument that nothing is really settled since five votes on the Supreme Court can unsettle precedent. In other words, Kavanaugh’s email should tell Collins and Murkowski that they are saps if they buy his “settled law” mantra.
To make matters worse, the general public isn’t buying the notion that Kavanaugh will figure out how to preserve a precedent that conservatives have waited decades to overturn. According to the PRRI poll, a large plurality of Americans (48 percent) believe Kavanaugh will vote to overturn Roe v. Wade, while only 25 percent say he will uphold it. And along party lines, the divide is striking:
Republicans are divided when it comes to whether they think Trump’s court nominee would vote to overturn Roe v. Wade. About one-third (34%) of Republicans believe Trump’s nominee would vote to overturn the decision, and about one-third (32%) believe the nominee would vote to uphold it. Notably, one-third (33%) of Republicans say they do not know how Trump’s nominee would vote on this critical issue.Democrats are significantly more likely than Republicans to believe that President Trump’s Supreme Court nominee would vote to overturn Roe v. Wade. Nearly two-thirds (64%) of Democrats say Trump’s nominee would vote to overturn the decision, compared to 17% who say he would vote to uphold it and 19% who are unsure.
Frankly, I think Republican respondents aren’t being candid with pollsters but, instead, are maintaining the cover story. If they really thought he’d vote to uphold Roe, they’d be up in arms.
What’s more, Roe is quite popular: “A majority (56%) of Americans say that Roe v. Wade was decided correctly by the Supreme Court and should be upheld, compared to just one-third (33%) who say it was the wrong decision and should be overturned. Eleven percent say they do not know or refused to answer the question.” And partisan differences are clear: “Nearly three-quarters (73%) of Democrats say that Roe v. Wade was decided correctly by the Supreme Court and should be upheld, compared to about one in five (21%) who say it was decided incorrectly and should be overturned. By contrast, only about one-third (34%) of Republicans believe the Roe v. Wade decision was correct, compared to a majority (52%) who say it was the wrong decision.”
What this means in practice is far from clear since “16 states have laws that could be used to restrict legal access to abortion services, while nine states have laws that would protect at least some legal access to abortion services.” It is hardly surprising, then, that “six in ten (60%) Americans say they are not sure if abortion would be illegal or legal in their state if the Supreme Court overturns Roe v. Wade.”
They are right to be uncertain. No politicians — including Collins and Murkowski — can guarantee which states will preserve the status quo, which will make abortions more difficult to get, and which will effectively eliminate abortion providers in their states.
So we come back to the dilemma facing the two senators. They are unlikely to convince voters, especially ones in their state particularly tuned into the issue, that Kavanaugh is going to vote to preserve legal abortions in the same manner that Kennedy did. The senators can pretend they believe that, but voters have figured out what’s going on, and likely aren’t going to believe that Collins and Murkowski are that naive. Rather, they’ll rightly conclude that the two senators lacked the nerve to stand up to their party and their Republican colleagues. Abortion-rights voters who supported these two for years will understand that, on the most important vote on this issue, they were left high and dry by two not-really-pro-choice-when-it-mattered senators.
Moreover, history will judge Collins and Murkowski by the results. Should Kavanaugh roll back or eliminate constitutional protections for abortion, their names will be — as was the case with Vidkun Quisling — synonymous with “sellouts,” “collaborators,” or, to use a Trumpism, “phonies.” They can vote however they like, but what they cannot do is escape accountability for their votes.