On July 10, one day after President Trump nominated Brett Kavanaugh to the Supreme Court, reporters in the Capitol were trying to suss out Maine Sen. Susan Collins’ impressions of the judge. One asked if she was concerned that Kavanaugh might gut the Affordable Care Act’s protections for people with pre-existing conditions, as yet another lawsuit filed by Republican attorneys general sought to do. After a subtle jab about how Democrats were emphasizing the issue because it was more “unifying” for their caucus than Roe v. Wade, Collins suggested that fears of Kavanaugh’s health care views were overblown, and that he was a moderate.
“The justice has already rendered one decision on the Affordable Care Act that, frankly, was criticized by conservatives of not going far enough,” she said.
A couple days later, Collins was asked if she had concerns about the 2009 law review article Kavanaugh authored arguing that Congress should pass a law deferring criminal or civil proceedings against a sitting president until after they left office. She gave an odd answer.
“This was long before there was a Russia investigation,” she said, “and long before Donald Trump was president. So I think those who are trying to draw a link here are missing the timeline.”
Collins returned to these issues in the 45-minute speech she delivered on the Senate floor Friday afternoon announcing that she would vote to confirm Kavanaugh. As she rejected criticism after criticism about how Kavanaugh would harm protections for pre-existing conditions (he is a strong believer in severability!), or rule to benefit a president under investigation (nominees in the past have consistently ruled against the presidents who appointed them!), or against same-sex couples’ rights (no, he’s cool with them) or Roe v. Wade (some judges merely nod to precedent, but Kavanaugh friggin’ loves precedent), I was transported back to those early days of the nomination. Or to her brief appearance before the press following her two-hour sit-down with Kavanaugh, in late August, when she was pleased to report that Kavanaugh had told her he considered Roe to be “settled law.” Or to the protracted fight over which of Kavanaugh’s White House records senators could review, when she said there was no need to look at those from his tenure as White House staff secretary.
Collins had always, on policy, process or past allegations, been in the same place: Working to give Kavanaugh the benefit of the doubt, and hearing what she needed to hear to get herself to yes.
While some of her arguments on the Senate floor today made sense—presidents under investigation have made and can make Supreme Court nominations—others strained credulity, or fell into bad faith. She described Kavanaugh’s apparent belief that there’s a constitutional obligation to respect precedent, unless the precedent is a truly grievous injustice, like Plessy v. Ferguson. How is she to know that Kavanaugh doesn’t view Roe as a similar injustice, as millions of Americans do? A view that the conservative legal community has organized itself around for decades?
Collins fawned over the American Bar Association giving Kavanaugh its “highest possible rating,” a frequent talking point, without noting that the ABA had said Friday morning that it was reevaluating that rating in light of recent temperamental concerns. Most egregiously, she spoke of how “interest groups have also spent an unprecedented amount of dark money opposing this nomination” and “whipping” their supporters “into a frenzy,” without once mentioning the Judicial Crisis Network, the big-spending pro-Kavanaugh group doing the same.
This speech was not purely an act of partisan loyalty. Collins works to find her way to yes on any president’s Supreme Court nominees, having voted, now, for the last six, from three different presidents. That was her mindset when Kavanaugh was nominated, when she was vetting his record, and when the allegations surfaced. And that’s where she was on Friday.
The stakes are different this time, though. Collins worked her way to yes on a nominee who would move the center of the court ideologically in a way that the previous nominees hadn’t. Her arguments that Kavanaugh wouldn’t meaningfully hurt access to abortion, same-sex rights, protections for people with pre-existing conditions, or anything else she flicked away will be judged by history. She could be right. But all of those Republican senators who watched the speech from the floor, and embraced Collins afterwards? They don’t want the Kavanaugh that Collins promised us. And they could be right, too.
One more thing
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