UPDATE: 4:30 p.m. — After this story was initially published, Clark sent HuffPost a statement: “Senator Collins never preapproved Judge Brett Kavanaugh. She never greenlighted Brett Kavanaugh. She never approved Kavanaugh in her consultations with the President.”
What could Sen. Susan Collins be thinking? A vote on Supreme Court nominee Brett Kavanaugh is around the corner, and the official word from her, a Republican from Maine, is that she hasn’t made up her mind. Abortion rights supporters have flooded her state with television and digital ads in the desperate hope that Collins will buck her party and vote against confirming Kavanaugh, possibly saving Roe v. Wade for generations of women.
But circumstantial evidence abounds that she will vote to confirm, and to that pile we can add something gleaned from a source close to Collins’ staff: She approved Kavanaugh in her consultations with President Donald Trump before he settled on a nominee.
Annie Clark, a spokeswoman for Collins, told HuffPost that while the senator talked extensively with Trump throughout the process of choosing a nominee, she “never gave [the White House] a list and never committed to supporting anyone.”
But the wonder isn’t so much how she’s going to vote as why there’s any doubt: A close reading of Collins’ record strongly indicates she will be a yes on Kavanaugh. The only question is how much political cover she can give herself.
Collins must perceive herself as being in a tough spot with this vote. From her perspective, the biggest threat to her job right now is not the pressure campaign being mounted by reproductive rights groups in Maine but a competitive primary challenge from her right in 2020. And she has already infuriated Maine Republicans by crossing the aisle to protect Obamacare’s individual mandate, never mind that she subsequently voted for a tax bill to which Republicans attached provisions repealing the mandate.
Collins is not as much of a maverick as people give her credit for.
She has been noticeably warm toward Kavanaugh since Trump nominated him in mid-July, despite her promise that she would not consider a nominee who is hostile to Roe. “Hostile” seems to be the key word for her. Kavanaugh has criticized the landmark 1973 abortion rights decision in a speech and ruled against abortion rights and birth control access more than once as a federal judge, but she seemed to be satisfied with his answer this month on Roe.
“He said that he agreed with what [Chief Justice John] Roberts said at his nomination hearing, at which he said that it was settled law,” she told reporters after quizzing Kavanaugh for two hours. She added that his answer on Roe was “very strong.”
Calling a Supreme Court decision “settled law” means nothing, because the court can overturn previous decisions. Senate Minority Leader Chuck Schumer (N.Y.) asked Kavanaugh a more meaningful question ― whether Roe was wrongly decided ― and Kavanaugh would not answer, despite having weighed in on other decisions. That he agrees with Roberts on the matter should be another major red flag: Since calling Roe “settled law,” Roberts has voted against abortion rights nearly every time the issue has come before him.
Collins surely knows this. Don’t believe her portrayal in some quarters as a dupe and political naif wandering innocently among the male political sharks. She has served in the Senate for more than two decades. It is more likely that she voted for the tax bill, for instance, because she supported the provisions of the tax bill, whatever their ramifications for Obamacare.
On judges in particular, she has never drawn any hard ideological lines. She has voted to confirm five Supreme Court justices across the ideological spectrum and then watched some of them vote against abortion rights.
“She looks for a judge who will follow the facts and the law where they lead,” Clark said. “She does not, however, use an ideological litmus test to disqualify or approve judges because of their personal beliefs.”
Collins is called a centrist, but at least with regard to judicial nominees, it might be more useful to see her as a formalist. “Playing politics with judicial nominees is profoundly damaging to the Senate’s reputation and stature,” she said in a speech explaining her vote to confirm Neil Gorsuch in 2017. “It politicizes our judicial nomination process and threatens the independence of our courts, which are supposed to be above partisan politics.”
Collins surely knows Kavanaugh opposes legal abortion and that Justice Anthony Kennedy’s retirement leaves Roe hanging in the balance. But absent some ideological awakening, it’s hard to see her coming down against someone who has made all the right noises about respecting precedent.
Still, a Collins vote for Kavanaugh would be no less of a betrayal to the reproductive rights movement — “the final betrayal,” Ilyse Hogue, the president of NARAL Pro-Choice America, called it. “There is no going back. It doesn’t matter how many times you voted not to defund Planned Parenthood if you pave the way to end Roe in this country.”
The movement hails Collins as a hero. Planned Parenthood gave her its Barry Goldwater Award in 2017 for GOP members of Congress who “champion reproductive health care issues and who fight to ensure the rights granted to women.”
“She has not been a frontline fighter,” Hogue said, “but she has been a bulwark against the impact of an extraordinary agenda to oppress women through reproductive rights, and she has been there when we needed her for Planned Parenthood, and she said protecting Roe was something she understood to be a fundamental responsibility, and that is what we need right now — someone who recognizes the sanctity of that contract. There are a handful of people here who own the fate and the future of all American women.”
Celinda Lake, a leading pollster and Democratic strategist who has closely studied Maine, thinks Collins’ political strategy on Kavanaugh may be misguided. Polls show that Maine voters broadly want to see Roe upheld and that Trump’s popularity is declining there. And independent voters in Maine, on whom Collins relies as a moderate, are wildly in love with their Sen. Angus King, who caucuses with the Democrats and has indicated that he’ll vote against Kavanaugh.
“I think she’s making a very severe miscalculation of how much cover she has on Roe, which is zero,” Lake said, “and how much cover she has [among independents] with King voting the other way. I think she is seriously miscalculating how this will play and also how Maine women will respond to it. She’s relied on them for her support, and they are not for this nomination. There’s a big gender gap.”
A Public Policy Polling survey released last week found that 49 percent of Maine voters asked said they want to Collins to reject Kavanaugh, while 42 percent said she should vote to confirm him. When told that Kavanaugh could tip the court against Roe, 54 percent of respondents said they were less likely to support his confirmation, and only 24 percent said they were more likely.
According to Lake, Mainers also don’t like that Kavanaugh has signaled that a sitting president may not be indicted. “Collins is perceived to be very honest, very clean, and Mainers are very anti-corruption,” Lake said. “So this idea of Kavanaugh letting Trump get away with things ― that’s not going to sell well in Maine. Mainers like checks and balances, and that’s a really strong argument against Kavanaugh.”
But Collins is not as much of a maverick as people give her credit for. She was hailed as a hero for blocking a GOP bill to repeal Obamacare and defund Planned Parenthood, but she has also voted to confirm at least five anti-abortion judges to lifetime positions on federal courts. And she voted to confirm Gorsuch, Trump’s first Supreme Court pick, who sided with anti-abortion “crisis pregnancy centers” in a case this year.
Collins was never going to be the savior of Roe v. Wade. No amount of liberal wishcasting was going to change that.
“It’s just staggering,” said Hogue. “All of the polling since Kavanaugh has shown just how dear Roe is to Americans across the spectrum. You’ve got a president embroiled in potentially criminal conspiracy charges who picked a guy off of a list compiled by the Federalist Society who has already called Roe rotten precedent. That’s everything you need to win.
“The only thing we don’t have is a single senator willing to put patriotism over party in this pivotal moment.”