One of the swing Republican votes on his nomination strongly suggested that the biggest concern for her about Kavanaugh is no longer an issue. After meeting with Kavanaugh on Tuesday for two hours, Sen. Susan Collins (R-Maine) told reporters that she got the sense that the two are aligned on whether abortion should remain legal, even if they don’t personally agree on abortion rights.
“He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said it was settled law,” Collins told reporters. “We had a very good, thorough discussion.”
Collins said Kavanaugh told her that he thinks the 1970s Supreme Court ruling legalizing abortion is settled law. She didn’t elaborate, but “settled law” is usually legalese for: If a case came to the court asking me to overturn settled law, I wouldn’t consider it because the issue is said and done.
That is exactly what Collins wanted to hear from Kavanaugh. She has strong feelings on supporting abortion rights and has wielded them as a reason to vote against Trump priorities, such as health care. She and Sen. Lisa Murkowski (R-Alaska) were two of the three “no” votes that helped bring down an Obamacare repeal last summer.
Protecting abortion rights is a major reason Collins and Murkowski are the only two of 51 Republican senators who are undecided on supporting Kavanaugh. It’s not lost on them that Trump said during the campaign that he would pick justices who were inclined to overturn Roe v. Wade.
“From my perspective, Roe v. Wade is an important precedent, and it is settled law,” Collins told reporters in July, saying she wouldn’t vote for someone “hostile” to the ruling.
Why is this one issue for one senator so important in regards to who sits on the Supreme Court to replace retiring Justice Anthony M. Kennedy? Because on-the-fence Republicans can make or break Kavanaugh’s nomination. Republicans control the Senate, and if there are no Republican defections, Kavanaugh will have enough support to be confirmed no matter what Democrats decide to do.
But Republicans only have a one- or two-vote majority (depending on Sen. John McCain’s (R-Ariz.) health), so any potential defection counts, especially if all Democrats stick together and oppose Kavanaugh. Collins and Murkowski are two of the Senate’s most moderate members and are the most likely to break with their party on Kavanaugh. If they did, concerns that he would upend legalized abortion would be a big reason.
Murkowski has been less direct about which way she is leaning with Kavanaugh, though she hasn’t met with him yet.
But overall, neither senator has given Kavanaugh opponents much reason to be hopeful that they will break with their party and cost Kavanaugh a seat on the Supreme Court. The two moderate senators have generally been supportive of Republican leaders' position on not getting all of Kavanaugh’s documents to review in time for a vote.
Unlike Sen. Rand Paul (R-Ky.), who flirted briefly with opposing Kavanaugh before coming around, they have not been very vocal about concerns about the judge. In fact, both have said they have found nothing disqualifying so far about Kavanaugh.
Even if they did do an about-face and oppose Kavanaugh, it’s possible Senate Democrats running for reelection in states Trump won, such as Sen. Joe Manchin III (D-W.Va.), make up the difference by supporting Kavanaugh.
It was always going to be a surprise if Kavanaugh’s nomination were sunk by members of his own party. That scenario is less probable than ever now that Collins seems appeased by the nominee’s views on the legality of abortion.