Jurisprudence

Susan Collins’ Bad Faith

Her pro-Kavanaugh speech on the Senate floor was an insult to Americans’ intelligence.

Susan Collins at a podium on the Senate floor with female senators behind her
Sen. Susan Collins speaks on the Senate floor about her vote on Supreme Court nominee Brett Kavanaugh on Friday.
Senate TV via AP

Sen. Susan Collins’ Friday speech announcing her decision to support Brett Kavanaugh’s elevation to the Supreme Court revealed that her vote had never really been in doubt. The Republican senator declared herself undecided until the last possible minute, but it now appears that this very public ambivalence was a charade. Collins’ address started as a bad-faith attack on Democrats, then transformed into an astoundingly naïve defense of Kavanaugh’s jurisprudence. It concluded with a condescending sop to Christine Blasey Ford, who accused Kavanaugh of sexual assault, suggesting that she’d misidentified her alleged assailant. The speech might as well have been written by Mitch McConnell and Ed Whelan. It was an embarrassment and a travesty.

Collins began in full own-the-libs mode, condemning the “special interest groups” that “raced” to oppose Kavanaugh. This criticism is astonishingly hypocritical. Anti-Kavanaugh organizations have been consistently outspent by pro-Kavanaugh forces—particularly the Judicial Crisis Network, a dark-money group funded largely by a single anonymous donor. JCN spent more than $12 million boosting Kavanaugh, far outpacing Demand Justice’s $5 million anti-Kavanaugh push. Moreover, JCN pioneered the kind of “special interest” campaign for Supreme Court justices that Collins bemoaned. It spent $10 million promoting Justice Neil Gorsuch, and $7 million opposing Merrick Garland. Liberal groups like Demand Justice were formed to counteract JCN, and they haven’t (yet) resorted to the smear tactics for which JCN is notorious.

Then Collins asserted that these “special interest groups whipped their followers into a frenzy by spreading misrepresentations and outright falsehoods about Judge Kavanaugh’s judicial record.” Her implication was that the thousands of Americans who have written, called, and pleaded with their senators to vote against Kavanaugh were misled sheep responding to propaganda. Collins essentially disparaged her constituents on the Senate floor, portraying them as gullible fools.

It was an ironic critique given that Collins proceeded to reel off talking points about Kavanaugh’s jurisprudence that reflected a profound misunderstanding of the law. First, she suggested that Kavanaugh is some kind of judicial minimalist—that he has “argued for severing” an unconstitutional provision of legislation “as surgically as possible while allowing the overall law to remain intact.” In reality, Kavanaugh wrote that Supreme Court precedent says that when a law gives an executive agency too much independence from the president, that independence must be severed. That’s it—Kavanaugh was quoting SCOTUS in a highly specific and technical area of the law. Once on the Supreme Court, he may well agree with Justice Clarence Thomas that, when one part of a law is unconstitutional, the whole act must be struck down.

Later, Collins insisted that Kavanaugh struck a compromise in a case challenging Obamacare’s contraceptive mandate. She said he “incurred the disfavor of both sides of the political spectrum” by “seeking to ensure the availability of contraceptive services for women while minimizing the involvement of employers with religious objections.” And though “his critics frequently overlook this point,” Collins declared, Kavanaugh “wrote that the Supreme Court precedent strongly suggested that there was a compelling interest in facilitating access to birth control.”

It appears that Collins totally misunderstands this case, Priests for Life v. HHS. What Kavanaugh actually said is that the government could not require religious employers to sign a form announcing their opposition to birth control so that a third party could provide it instead. It was not a compromise at all; in fact, it evinced profound hostility to the contraception mandate. Collins’ fixation on his “compelling interest” language is asinine.
Kavanaugh merely acknowledged that, in Hobby Lobby, the Supreme Court “strongly suggests” that birth control access is a “compelling interest.” He then asserted that the mandate did not provide the “least restrictive means” of furthering that interest and must therefore be blocked. Religious conservatives did not “disfavor” his opinion. Rather, it gave them everything they wanted, subverting employees’ access to contraception. Collins’ claim to the contrary is a fantasy.

Then there is Collins’ insistence that Kavanaugh follows precedent and would therefore refrain from overturning Roe v. Wade. He believes, she said, that precedent is “not something to be trimmed, narrowed, discarded, or overlooked.” How, then, does she explain Kavanaugh’s opinion in Garza v. Hargan? In that case, the Trump administration barred an undocumented minor in federal custody from obtaining an abortion even though she had already received judicial bypass from a judge, as required by state law. Kavanaugh wrote that this flat ban was perfectly constitutional, because the Supreme Court has not granted minors a right to “immediate abortion on demand.”

That’s true, as far as it goes: The Supreme Court has ruled that states may force minors to get their parents’ consent before terminating a pregnancy or, if that’s impossible, to obtain a judicial bypass. It has not, however, authorized additional restraints on minors, like the ones imposed by the Trump administration. How did Kavanaugh contend with these precedents, which clearly establish the maximum obstacles the government can place before minors seeking an abortion? He ignored them. Kavanaugh willfully “overlooked” precedent to reach an anti-abortion ruling, illustrating exactly how he’ll gut Roe once he joins the Supreme Court.

The rest of Collins’ speech was an insult to Americans’ intelligence. She pointed out that Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter were appointed by Republicans but voted to uphold Roe. That’s correct, and it’s why the Republican legal establishment’s refrain is “No More Souters.” It’s why the Federalist Society created a network of conservative lawyers unified by their opposition to Roe. It’s why Donald Trump, who campaigned on overturning Roe, outsourced judicial nominations to the Federalist Society. And it’s why Kavanaugh, a Federalist Society loyalist, was selected for this seat.

Collins concluded by delivering a modified Ed Whelan defense of Kavanaugh, stating that Ford must have been assaulted by somebody else. It was a perfectly disingenuous capstone to her dishonest speech. The senator said nothing revealing or insightful on Friday. Collins praised her allies, discredited her opponents, and dismissed the concerns of her constituents. She did not sound like a statesperson carefully weighing a crucial decision. She sounded like a partisan hack.