I would be more sympathetic to Susan Collins’s claims that she was “misled” by Supreme Court Justice Brett M. Kavanaugh if the Republican senator from Maine were willing to shoulder even a teensy bit of personal responsibility for swallowing Kavanaugh’s assurances that he wasn’t itching to overturn Roe v. Wade.
In Collins’s self-serving telling, she was taken in by Kavanaugh’s convincing public and private dissembling. “This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” Collins said in a statement, referring to Kavanaugh and Neil M. Gorsuch, who both voted last week to eliminate the constitutional protection for abortion rights that has been in place for nearly a half-century.
Excuse me, but Collins chose to hear what she wanted to hear. With a campaign for a fifth term just two years away, she opted to believe what was most politically advantageous for her to believe.
If Kavanaugh induced her to trust that he would not overrule Roe, shame on him to the extent that he tricked her. But shame on her, too, for allowing herself to be tricked, and for not owning up to the role she played in paving the way for Friday’s decision. Granted, if Collins had voted against Kavanaugh, he still might have been confirmed; West Virginia Democrat Joe Manchin III was similarly fooled. Still, “I messed up,” or some senatorial version thereof, would be nice to hear.
Collins is not a member of the Senate Judiciary Committee, but she probably spent as much time examining Kavanaugh’s record, particularly when it came to abortion, as any senator sitting on the panel; she deserves credit for that diligence. In my view, Collins deserves credit, too, for her general inclination to defer to presidents, Republican and Democrat alike, when it comes to their judicial nominees.
But Collins should have been on notice — her system for detecting a threat to Roe should have been flashing red — before Kavanaugh uttered a single word. “I would not support a nominee who demonstrated hostility to Roe v. Wade,” Collins told CNN in July 2018, after Justice Anthony M. Kennedy announced his retirement.
Okay, let’s talk about Kavanaugh, Kennedy’s former clerk, who was quickly selected to take his spot. Anyone who spent the time that Collins did studying Kavanaugh’s record would have recognized his utter distaste for the notion that the Constitution protects the right to abortion.
In a 2017 speech to the American Enterprise Institute, Kavanaugh lavished praise on former chief justice William H. Rehnquist, “my first judicial hero,” and Rehnquist’s approach to identifying constitutional rights. “Of course, even a first-year law student could tell you that the [Rehnquist] approach to unenumerated rights was not consistent with the approach of the abortion cases,” Kavanaugh observed. Even a first-term senator could tell you that this was not exactly a ringing endorsement of Roe. You might even call it “demonstrated hostility.”
But that wasn’t all. In a 2017 case he heard as an appeals court judge, Kavanaugh said it was not an “undue burden” to force a 15-week-pregnant 17-year-old undocumented immigrant to wait to get an abortion while authorities searched for a sponsor for her — and complained that the majority was providing a right to “immediate abortion on demand.” Sounds pretty hostile to me.
Still, let’s assume that the real question confronting Collins wasn’t what Kavanaugh thought about Roe but whether he would vote to overturn it, despite the case having been repeatedly reaffirmed and despite the doctrine of stare decisis, that the court should be reluctant to disturb entrenched precedents. This is where Collins declared herself duped, because Kavanaugh, in his public testimony and their closed-door meeting, trumpeted his commitment to upholding precedent.
“Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law,” Kavanaugh told Collins, according to contemporaneous notes taken by Collins staffers and provided to the New York Times. “I am a don’t-rock-the-boat kind of judge,” he assured her.
Look, the man was on the brink of getting a job he had been pursuing nearly his entire adult life. He was going to make the best case possible for his open-mindedness and restraint — who wouldn’t? Collins surely understood that, or should have. To take Kavanaugh’s statements as some kind of definitive assurance that he would uphold Roe was foolhardy.
Worse than foolhardy, actually, because it was so undergirded by motivated reasoning: Collins wanted to back Kavanaugh, as she had backed every previous Supreme Court nominee. It was in her political interest to do so, in advance of a reelection campaign during which going against the president’s choice would have infuriated her fellow Republicans.
At best, Collins made a bet on Kavanaugh that turned out bad. At least she could own that, and show a little contrition.