BTRTN: Roe v. Wade, and Collins v. Kavanaugh

Among the countless indignities along the road to the now seemingly inevitable undoing of Roe v. Wade is the curious saga of Senator Susan Collins of Maine, who claimed that she voted for Brett Kavanaugh’s confirmation to the Supreme Court based on his supposed assurances that he would not overturn the landmark precedent. Last week, Collins reiterated that Kavanaugh made such assertions. If Kavanaugh deceived Collins in order to secure her vote, shouldn't there be consequences?

Senator Susan Collins of Maine has become a punchline.

Nowadays, if someone falls for a dumb prank or proves to be exceptionally gullible, they’d be accused of “pulling a Collins.” Here’s an example in context: “I told my teacher that I completed my homework, but that my printer cartridge was empty. She told me I could turn it in on Monday. Man, she is such a Susan Collins!”

Yes, when Susan Collins finally retires after decades of worthy service, she will be remembered for two things, and two things only.

She was the gullible apologist who did not find Donald Trump guilty in his first impeachment trial because she thought he had “learned a pretty big lesson.” Yes, Senator Collins, the “pretty big lesson” he learned is that the best way to avoid future impeachment is to instigate a violent insurrection to overthrow the government of the United States.

While still wiping the egg off her face from her naïve misreading of Donald Trump, the Senator is now being excoriated for her misplaced trust that Brett Kavanaugh would not overturn Roe v. Wade, which was supposedly the basis for her decision to vote for his confirmation to the Supreme Court. 

In September, 2018, the Senate confirmation hearings on the nomination of Brett Kavanaugh were extraordinary drama, as Christine Blasey Ford publicly accused the nominee of having sexually violated her in high school. All eyes were on the three "undecided" Republicans  -- Collins, Lisa Murkowski, and Jeff Flake. With 48 Democrats lined up against Kavanaugh, he needed at least one of these three votes to at least achieve a tie that could be broken in his favor by VP Mike Pence.  Susan Collins’ support was crucial -- you might even say that when it came to Kavanaugh’s confirmation, this particular woman had the right to choose.

Even as questions about Brett Kavanaugh’s honesty swirled under the credible allegations of sexual misconduct, Collins voted to confirm, largely based on a personal interview she conducted with Kavanaugh.  A supporter of a woman’s right to choose, Collins claimed to have grilled Kavanaugh before emerging assured that he had no intention of reversing Roe. So strong was the interest in Collins' vote that she took the unusual step of making a speech on the floor of the Senate to explain the full reasoning behind her decision to support Kavanaugh, which essentially ensured his confirmation.

It was an interesting political move. With her 2020 re-election in a swing state bid looming, Collins may have simply been pursuing a strategy to placate both sides in her highly polarized state: she would please the hard right in her state by voting to confirm Kavanaugh, but she would mollify moderates by claiming that she had secured Kavanaugh's agreement that Roe was not to be overturned.

Now, with the leak of the Alito draft, it is clear that Collins' faith in Kavanaugh was every bit as misguided as her faith that Trump had "learned a pretty big lesson." She has once again been made the fool.

But is that fair?

To this day, Collins believes that Kavanaugh -- and Gorsuch before him -- misled her in order to secure her confirmation votes. Read the statement her office issued on May 3, 2022, after the leak of the Alito draft:

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

Wow. We can infer that "completely inconsistent" is merely an uber-discreet way of saying "those dudes lied to me." If Kavanaugh lied to Collins about Roe v. Wade in order to secure her vote... well, shouldn't there be consequences for that? 

Or -- did Collins ever really get a rock-solid assurance from Kavanaugh? Did she make a completely incorrect inference from what he said? Or did she simply say she did in order to navigate a tricky political issue with re-election looming? In short, did Collins mislead her own state voters in order to please both factions? 

 And if she did that, well, shouldn't there be consequences for that?

It's instructive to go back to Brett Kavanaugh's Senate hearings and read exactly what Susan Collins said in her public remarks about her decision at the time she voted to confirm. Let's examine the verbatim transcription of the portion of Collins’ remarks that pertained to Roe:

“There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade.  Protecting this right is important to me. To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself.  He believes that precedent ‘is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.’  In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.

The judge further explained that precedent provides stability, predictability, reliance, and fairness.  There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent.  The most famous example was when the Supreme Court in Brown v. Board of Education overruled Plessy v. Ferguson, correcting a ‘grievously wrong’ decision--to use the judge’s term--allowing racial inequality.  But, someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is ‘grievously wrong’ or ‘deeply inconsistent with the law.’  Those are Judge Kavanaugh’s phrases.

As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked.  Its roots in the Constitution give the concept of stare decisis greater weight such that precedent can’t be trimmed or narrowed simply because a judge might want to on a whim.  In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.

Noting that Roe v. Wade was decided 45 years ago, and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent.  He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.”

Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as a precedent. When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said “no.”

Woah!  Read what Susan Collins wrote at the time, and you realize that she was no lightweight making a cursory review of Kavanaugh's beliefs. She went to considerable lengths to pin Kavanaugh down on his opinions about Roe, "settled law," and the role of precedent.

It certainly seems clear, as one reads Collins' official statement, that Kavanaugh created the impression both in the private meeting and in public testimony that he had no intention of overturning Roe. 

But hold the phone...

Someone determined to defend Brett Kavanaugh would point to one phrase -- "except in the cases where a decision is grievously wrong." That, the logic goes, is all the wiggle room Kavanaugh needed. He apparently told Collins that the only time a Supreme Court precedent should be overturned is if the prior decision was "grievously wrong," but never bothered to mention that he thought Roe v. Wade itself was "grievously wrong." 

The language here is all the more amazing, in that Alito's draft uses the similar phrase "egregiously wrong" as the basis for his majority opinion that Roe be overturned.

So now we ask the obvious question: Is it possible that in a private meeting with Collins, Kavanaugh said that the only reason to overturn an established precedent is if it is "grievously wrong," and Susan Collins failed to ask Kavanaugh whether he thought Roe was "grievously wrong?" 

Perhaps she did ask, and Kavanaugh stiff-armed her with the standard "I can't react to a hypothetical," as he effectively did during Senator Diane Feinstein's aggressive interrogation about Roe v. Wade during the public confirmation hearings. There, too, Kavanaugh seemed to wax poetic at the sanctity of precedent, "settled law," and the fact that Planned Parenthood v. Casey confirmed Roe. But when Feinstein tried to coax the nominee into an opinion specific to Roe, Kavanaugh went full rope-a-dope, floating like a butterfly while invoking a time-honored strategy to refuse to comment on "hypothetical cases."

Of course, in just about any reading of this, it is cynical that Kavanaugh heard what Collins said on the Senate Floor and made absolutely no effort to correct her inference that the nominee had told her that he would not overturn Roe. He allowed her to stand up and tell the world that she had been assured that he would not overturn Roe, and he let her interpretation stand, unchallenged. 

The worst in all of this? In her press release last week, Susan Collins was not in any hurry to confront Brett Kavanaugh on this incredibly important "misunderstanding." Again, from that May 3 press release: "Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”  

Obviously what? Does Susan Collins think she doesn't have the right to demand that Kavanaugh square his private comments to her with his endorsement of the Alito brief now, before the vote is taken? Or is her patience simply a convenient way for Susan Collins to avoid the issue of her --or Kavanaugh's -- deceit until the decision is out and it is all a moot point?

Good people of the State of Maine: don't you think you are owed an explanation for this hugely consequential "misunderstanding?" 

If Susan Collins had concluded that Kavanaugh did plan to overturn Roe, isn't it entirely possible that would have influenced the votes of Jeff Flake, who voted to confirm, and Lisa Murkowski, who voted "present?" 

That is to say: Trump would then have had to nominate a different judge to the court... one whose position on Roe actually might have actually satisfied Collins' requirement.

And if you take that to its logical conclusion, that would mean that the leaked Alito draft was the minority, not majority, opinion -- and Roe would have survived another challenge, reinforcing its standing as "settled law" yet again.

Only two people know what happened in the private meeting between Susan Collins and Brett Kavanaugh. The irony is hard to measure: once again -- as with Anita Hill and Christine Blasey Ford -- we are left to try to figure out the truth in a case that the men will all insist is just another example of "he said, she said."

Senator Collins, if only to avoid drifting into history as a punchline, you'd be wise to take the time now to tell us exactly what Brett Kavanaugh said to you behind closed doors to convince you that he would not overturn Roe v. Wade.

Because if Brett Kavanaugh actually lied to you in order to get confirmed to the Supreme Court, you should not be standing by and waiting for Roe to be overturned to act.

If Kavanugh and Gorsuch lied to you about Roe to win their place on the bench, shouldn't you lead a charge demanding that they recuse themselves from ruling on Roe?

But let us be fair to Kavanaugh: what if it is true that he never gave Collins any assurance that he would preserve Roe? What if Collins took her public stand simply to navigate a tricky political issue in anticipation of a tough re-election campaign?  Well, in that case, Senator Collins, you should resign, because you deceived the voters of your state on one of the most important societal issues of our time.

In the end, there is some poetic justice in the fact that you if put two Republicans in a room and shut the door, and the only thing you know for certain is that one of them will lie to the other -- and it is entirely possible that they both lied to all of us. 

The carnage of how it came to pass that Roe was overturned will be one for the historians. And if the only gripe we had with the overturning of Roe v. Wade was one judge’s representations to one Senator in a private conversation, perhaps that could be dismissed. But the path to the destruction of Roe v. Wade required an appalling combination of Republican deception, deceit, and malevolent violation of honored norms in our democracy. Kavanaugh’s behavior was symbolic of a system repeatedly undermined and perverted for the purpose of overturning this landmark decision.

Kavanaugh was not alone in deceiving America – and Collins -- about his true feelings about Roe during the confirmation process. Both Amy Coney Barrett and Neil Gorsuch feigned deep respect Roe as “precedent of the Supreme Court,” while parsing their answers with enough legal caveats, cautious equivocation, and double-speak to allow for the wiggle room they’d need down the road when they would inevitably dump Roe.

There’s the fact that an overwhelming majority of American citizens believe that their government should preserve the right for a woman to get an abortion and do not want to see Roe v. Wade overturned.

Do not forget that this decision could only have come about because Mitch McConnell defied two centuries of tradition by blocking Barack Obama’s right to fill a vacancy on the Supreme Court, putting the very legitimacy of the current Court in serious doubt. Were that pick to have been filled by a left-leaning Obama-appointed Justice, and with John Roberts very likely advocating for honoring Roe as “settled law,” the current challenge to Roe would have likely resulted in a complicated, divided, messy decision – but it is very unlikely that Roe would have been overturned.

Then there are the millions of Republicans who “held their nose and voted for Trump” for the sole reason that Trump promised to deliver judges who would overturn Roe v. Wade. Above and beyond seeing Roe undone, we realize that Republicans willingly embraced the shame, incompetence, illegality, corruption, unnecessary Covid deaths, and the big and bigger lies of the Trump administration just so they could get rid of Roe. It has been estimated that hundreds of thousands of Americans died needlessly of Covid because of the failures of the Trump administration. Talk about the right to life. 

We will all have to live with the fact that this decision will pour gasoline on the ever-widening chasm that separates Red State from Blue State. A procedure that is supported with tax dollars in one state will be considered homicide in another. And you call these states "United?"

For all the deceit, deception, and duplicity that got us here, there are two questions at hand today. One is whether there is any possibility of stopping Alito’s draft from becoming the law of the land… and the second is whether there is any accountability for Justices -- or Senators -- who misled America for personal ambition and political gain. 

Chief Justice John Roberts professes grave concern about the fact that the Supreme Court is now perceived as excessively politicized. 

Yet he has done absolutely nothing to use his bully pulpit to attempt to mitigate this politicization. He has stood on the sidelines tolerating the racist behavior of Republican Senators during the confirmation of Justice Ketanji Brown Jackson. 

Now, a sitting U.S. Senator is claiming that two recent nominees lied to her during their confirmation hearings to secure her confirmation vote. You would think a Chief Justice who was concerned about the reputation of the Supreme Court would want to investigate such a consequential allegation.

Instead, the milquetoast John Roberts only wants to investigate how the Alito document was leaked.  

Senator Collins, you cannot and should not wait until the official vote on the Alito vote is taken. You must fight now.

If I were a betting man, I'd wager that you are the aggrieved party here. After reviewing  materials from the Kavanaugh hearings, it seems you had reason to believe that Kavanaugh was vowing to leave Roe intact. But if heard even more in private  -- a statement from Kavanaugh that was direct, comprehensive, and unequivocal -- speak now. 

It's up to you, Senator Collins. You can choose to raise your voice about this injustice, and you can choose to defend yourself against being made a laughingstock by some of the most senior misogynists in American government.

You are a United States Senator with a powerful bully pulpit, and you have every reason to be furious at being disrespected, lied to, and made into a punchline for your trust.

You are a woman with the right to choose. 

On behalf of all those women who soon will not have the right to choose, shouldn't you choose to do something about this?

 

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