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A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee

440px-Susan_Collins_official_Senate_photoBelow is my column in The Hill newspaper on the rising pressure on Sen. Susan Collins over her vote on Supreme Court nominee Brett Kavanaugh.  There is considerable anger over Collins maintaining that she would never vote for a nominee hostile to Roe v. Wade but refusing to acknowledge the widespread view of Kavanaugh as not only hostile to the reasoning of Roe but appointed by a president who promised only to nominate an anti-Roe justice.  As with Neil Gorsuch, Collins appears inclined to vote for Kavanaugh despite her oft-repeated pledge.   She insists that she is comfortable after Kavanaugh told her that Roe is “settled” law.  However, many have put Collins’ position as falling somewhere between hopeful thinking and willful blindness.  As discussed below, the unsettling thing about settled law is that only five votes make anything truly settled on the Court.

Adding to the political dimension are polls showing that the hearings did not produce a bump for confirmation.  The latest polling shows 38 percent in favor of Kavanaugh and 39 percent opposed. 

Here is the column:

First there was Greece. Then Spain. Then Venezuela. Now Republican Senator Susan Collins of Maine. All fell victim to leveraging too much on debt too long without making the inevitable difficult decisions. In the case of the first three, it was revenue. In the case of Collins, it is Roe v. Wade. All found that they could not maintain a financial or political position over the long run with either skeptical creditors or angry voters.

For more than a decade, Collins has secured bipartisan support as a moderate promising to be a steadfast vote in protecting the right to choose from any nominee who does not support the 1973 ruling. She has declared that she “would not support a nominee who demonstrated hostility to Roe v. Wade.” Time has now run out for Collins, who faces a nominee widely viewed as hostile to Roe, nominated by a president who promised to only put Roe killing justices on the Supreme Court. The bill has come and Collins may not have the political capital to cover over a decade of political debt in actually voting against a Republican nominee.

Collins, along with Republican Senator Lisa Murkowski of Alaska, face incensed voters over their refusal to acknowledge what seems obvious to everyone else, which is that Donald Trump has delivered on his promise to appoint a nominee who is not friendly to Roe. Some 3,000 hangers representing back alley abortions have been sent to her office, and almost a million dollars has been raised on a crowdfunding platform which declares that, if Collins votes for Brett Kavanaugh, the money will go to “her future opponent” in a general election.

In fairness to both Collins and Kavanaugh, the refusal to answer questions on abortion is consistent with prior Supreme Court nominees. While I have long been a critic of the “Ginsburg Rule,” nominees like Elena Kagan gave the same meaningless replies when asked about their views on Roe. Moreover, Democrats have overplayed a couple of references to Roe in the record as proof of Kavanaugh opposing the decision.

In a 2017 lecture at a Constitution Day event at the American Enterprise Institute, for example, Kavanaugh praised the dissent of the late Chief Justice William Rehnquist in Roe. However, he was praising the approach of Rehnquist to all unenumerated rights and his articulation of the high burden that must be faced by those claiming such rights. Kavanaugh never actually said he agreed with that particular ruling.

However, Kavanaugh did vote in dissent in Garza v. Hargan, the case of a young woman seeking an abortion. This case came a month after the Constitution Day event, and Kavanaugh voted in the majority in the appeals court ruling that the government could hold the girl to secure a “sponsor” so long as the girl is released “expeditiously.” That meant the girl might have to wait 11 days to find a sponsor or, if no sponsor was found, be allowed to have the abortion. The opinion actually made clear that the government could not unduly burden her right to an abortion.

Finally, Democrats hit Kavanaugh for a 2003 email, when he worked in the White House under President George W. Bush, on an opinion piece to defend judicial nominees. The draft included a line that “it is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Kavanaugh noted that he was “not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level” since the justices can always overrule its precedent and “three current justices” would do so. That is true but does not necessarily mean Kavanaugh would join them in such a vote.

Putting aside the misrepresentation of these prior positions as dispositive proof, it is equally dubious to accept his confirmation hearing statements as proof that Kavanaugh intends to maintain Roe. Collins has said she felt reassured when Kavanaugh told her that he considered Roe to be “settled law.” That says absolutely nothing since, as Kavanaugh himself noted correctly that the Supreme Court “can always overrule its precedent.” In other words, cases are “settled” in the judiciary until they are not.

As with nominees before Kavanaugh, his statements are more maddening than reassuring. When asked if the case was “correctly” decided, Kavanagh said that “Roe v. Wade is an important precedent of the Supreme Court” that has been “reaffirmed many times.” That is like asking a lumberjack standing in front of an old oak with an axe whether he intends to chop it down, only to be told “this tree is old with deep roots.” That is certainly information, but not the information you were seeking.

Most scholars believe Kavanaugh is likely to curtail Roe and its progeny. He has good faith reasons for questioning the basis for taking this issue from the states as part of an unenumerated right. His narrow interpretive approach tends to run counter to Roe and its constitutional foundation. It is less likely that the Supreme Court would outright overturn Roe. It can effectively kill Roe with a thousand papercuts, upholding procedural and substantive limitations on the right imposed by the states.

This all brings us back to Collins. She has avoided answering questions from reporters while issuing statements that she has not been expressly told that Kavanaugh has it out for Roe. Given his consistent interpretative approach and the widely held view that Kavanaugh is hostile to Roe, Collins risks looking like a senatorial Sergeant Schultz, running through the halls insisting she knows nothing. For many voters on both sides of the abortion rights issue, the very public stand that Collins has taken on principle now appears painfully artificial and convenient.

It is clear that Collins will not consider herself bound by her pledge absent an outright declaration of lethal intent by a nominee. Such a confession from a conservative nominee is about as likely as a liberal nominee declaring an intent to bar any state law affecting abortions. If Collins is not willing to read a record for the likely approach of a nominee, her signature pledge is practically meaningless. Going back to the tree, either you can read likely intent from the fact that the lumberjack is holding an axe, or you can focus on the fact that the tree is still standing.

Collins taking an artificial position reflects a broken Senate confirmation process that has become little more than an empty exercise. These Supreme Court nomination hearings are primarily about the senators rather than the judges. Senators want cover for their votes, even in the denial of what seems abundantly obvious. Kavanaugh says Roe is settled and that could well settle the matter for Collins.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

164 thoughts on “A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee”

  1. Roe v Wade will itself be aborted. The deciding judges in Roe raped the Constitution and it’s the right thing to do.

      2. “Ivan would make women carry the babies of rapists!”

        Peter, do you know that for a fact or are you making things up like you normally do?

    2. Either murder is right or murder is wrong.

      It can’t have been wrong when Stalin and Mao murdered millions of people,

      yet be right when Americans murdered 61 million babies since 1973.

      1. So sorry for your loss, but the era when women were the chattel property of their nearest male relative is over. Women now are equal citizens, who are now in full control of their own bodies–including their reproductive systems. Sadly for your apparently constructed fantasy-life, but even if the old system were still in place, you still wouldn’t get any.

        this is to “ya, they told me in junior high that I was ‘different'” georgie

  3. Please, please don’t make us give up our right to murder our babies when they are inconvenient to us.
    🙁

    1. You may think that embryos are babies. The Pope probably thinks that embryos are babies. But not everybody thinks that embryos are babies. Are you sure that most people believe that embryos are babies? One of the key ideas behind Roe v Wade was that “baby-ness” develops slowly throughout a pregnancy, not switched on instantaneously like a floor lamp.

      1. But not everybody thinks that embryos are babies

        Yes, some people are perverse and stupid, and you pay them no mind. Some of them are lawyers who produce verbose opinions trying to justify the indefensible. They’re plain bad.

          1. Evidently you like to call people names. I merely pointed out that not everybody – or even necessarily most people – believe that embryos are babies. I fail to see what is idiotic about that viewpoint.

            It is also worth asking what would happen if/when Roe v Wade is overturned. That just returns the abortion issue to each state. At first that would mostly affect poorer women, as wealthier ones could always go to a more lenient state, or even to Canada or Mexico or some other country. But what about those abortions? Pregnancy checks at the state line, or at airports? Mandatory chastity belts? Police monitoring of the pregnancy status of all young women?

      2. Jay S. since you are such an expert as to when human life begins can you tell us when that “disease” suddenly changes into a human being? I’m not asking you about the law.

          1. I don’t know what Jewish law is and I hesitate to guess. It actually is an interesting question. I bet that a debate among Jewish scholars would be very lively.

            In the end I note a lot of people focus on politics rather than morality. That is not a way to determine life or death.

        2. Well, I never stated anywhere that there was a “disease” involved. To repeat myself, RvW said that “baby-ness” develops slowly, not suddenly. That in the first trimester, the woman’s interests are dominant. That in the last trimester, the soon-to-be-child’s interests should predominate. And that in the middle, it is not clear.

          At the risk of making some peoples’ heads explode, I want to float a different vision of the nature of humanity and humanness…. In this view, the human body is a vessel or container, to be co-occupied by our apparent selves and also our “souls.” As we grow and live our lives, the souls absorb the sum total of our life experiences. Then, when we die, these experiences are transferred to a higher entity, which many would call “God.” In this view, a developing human body or fetus has very little value, as it has not had the chance to absorb much at all. Indeed, the elderly would be the most valuable of all, as they have experienced the most. Think of God as an entity that wants to collect myriads of life experiences, for better or worse, to increase his/her/its wisdom. Maybe like a person would want to have the largest possible collection of movies on DVDs…. In that view, an abortion is not a particularly big deal.

          1. Jay S, it appears you treat pregnancy like a disease something to be cut out of the body. I didn’t ask for legalities rather what makes the baby / fetus determination (biologically) so it can can be cut out and destroyed?

            You write: ” fetus has very little value, as it has not had the chance to absorb much at all. ” Does that mean a living child out of the womb can be cut out of society or killed because he is dumb and will never have a chance to absorb much? On the other side are you advocating killing the elderly when their brains are shot because they aren’t absorbing any more and if anything their value has declined?

            What is your biologic basis that makes you say this is a baby and this is not a baby and therefore can be cut out of the womb or society?

            I am not taking a position on abortion one way or the other, just trying to find meaning in your words.

  4. Susan Collins (b. 1952) has spent 41 of the last 43 years in political positions – in elective office, on legislative staffs, and in patronage jobs. The other two years was spent in the higher education apparat (at an institution which was indubitably hunting for connections and chits). She’s Chuck Schumer, just with better manners, better instincts, and a more agreeable personality. She hasn’t any practical education whatsoever (BA from a college strictly devoted to academics and the arts). Her position on Roe is indubitably the result of sentiment in her social circle and a habit of multidirectional placation. The woman one might wager isn’t candid in any venue.

  5. Paul C. Schulte, once upon a time weren’t senators appointed and not elected. Would this be the time when states lost control over their senators?

    1. Independent Bob – Very rich men bought their office of Senator. No one really had control over them. 😉 Think of George Soros buying enough votes in the California legislature to become Senator. Most of them did not see it as a life calling.

    1. Independent Bob – in my voting lifetime, I have never had a candidate that was perfect. Each candidate that I voted for disagreed with me on one or more issues. However, on the whole, I thought they were the person for the job. The same with Kananaugh, Collins voted for him before, she would be hard pressed to vote against him this time.

      1. PCS:
        Stop denigrating ideological purity among our government officials, Paul. Don’t you know only the perfect can lead the perfect. And perfect as we all know is the mortal enemy of the good. Or to turn Confucius on his head: “Better a pebble without a flaw than a diamond with one.”

        1. mespo – I think I can get a better price for a one carat flawed diamond than a flawless pebble. 😉 Just saying.

  7. The confirmation hearings are a sickening circus! Politicians at their worst! Like all televised events, they’re just used for political grandstanding. We should require Republicans and Democrats to submit written interrogatories and take the cameras out of the equation. Also, while politicos are still bleating about “abortion” and “abortion rights,” medical technology has changed the equation significantly. Morning after pills are the new coat hanger.

  8. How absurd that the Democrats, the party of regulation and government control, don’t understand that all transactions are liable to some form of regulation. How can anyone suggest that ruling that an ILLEGAL ALIEN MINOR is not entitled to ABORTION ON DEMAND PAID FOR BY THE AMERICAN TAXPAYER is anything but logical and cogent thinking. First, what rights does any illegal alien (or that matter any American citizen) have to demand a financial transaction from anyone else. Secondly, why would we think that MINORS that can’t even take a MOTRIN at school without a permission slip from parents and doctors could just have an ABORTION. COMMON SENSE PLEASE. This extreme left position that I am supposed to pay for anything and everything the LEFT likes is getting absurd. His decision was cogent and representative of what the majority of Americans believe.

  9. Pointless article. JT says “duplicity” aside. He admits there is duplicity and downright decption in characterizing Kavanaugh’s position but goes on to expound as if that was trivial.
    Kamala Harris even went as far as to deceptively edit video in order to smear Kavanaugh. How disgraceful is that for a United States Senator?

    On my not so humble opinion, a nominee with a record on the bench should be evaluated by the number of reversals higher courts have exercised. A nominee with no record on the bench, should be evaluated on understanding of the Law and Constitution. This practice of shopping for an outcome in selecting judges, defiles the Law.

  10. This reads like a hit piece on Collins in an attempt or to change her vote on Kavanagh. It’s also putting a litmus test of adoration of Roe on any nominee. Roe may be good social policy but it’s bad law and worse yet judicial legislating, If Collins wants to protect those extra-utero females at the expense of the inter-utero ones she is perfectly able to introduce legislation to accomplish that purpose. In today’s one issue tantrum world, the nominee is prudent to avoid declaring his inclinations until the case is before him. Why JT is anti-Kavanaugh is beyond me. Perhaps he can explain that instead of launching an indirect broadside at his potential supporters. The decision in Roe not sacrosanct — no decision is lest we still operate under Dred Scott. If the liberals want to protect their cause, debated legislation is the way not disqualifying judges simply based on their thoughts on one controversial decision.

    1. “ Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

      ~ Ruth Baden Ginsburg,North Carolina Law Review (1985)

    2. No, it’s horrid social policy. Of course, Peter Shill’s all for it.

      1. TSD:
        Peter Hill has remarkably bad instincts, it’s true, but in the trade-off between “back alley” abortions (which were precious few*) and legality, I’d go with legality. This is a tough issue, but I side with Aristotle that life begins at viability (“quickening”) and not conception. This was also the concept employed by early church fathers like Aquinas. It is remarkable similar to the prescription in Roe which divides the right into trimesters. I believe Blackmun, a practicing Methodist, conformed to his church’s view on abortion recognizing that life is sacred but so is the life of the mother and copied a traditional view on abortion along the lines I described above. Maybe good morality, but bad law using a heavy-handed approach to divine a right to privacy that even the most studious and constitutionally accomplished eyes never found.
        ___________

        *”In 1978, the American Journal of Obstetrics and Gynecology stated the legalization of abortion “has had no major impact on the number of women dying from abortion” since the results of a study they completed showed that over 90 percent of all illegal abortions were performed by licensed physicians.”

        ~American Journal of Obstetrics and Gynecology (1978)

        39 women who died from illegal abortions in 1972.

        ~U.S. Bureau of Vital Statistics

        2. It’s not a difficult issue. The ‘difficulty’ comes from intellectualizing undertaken because the answers are unpalatable to some.

          Unexpected children are inconvenient to people. They are proportionately more inconvenient to the sort of people who plan their lives. Like Harry Blackmun’s daughters, who badgered their father about it. Almost no one in this country wants or wanted the legal regime we have. The people who do are thick on the appellate bench and in law faculties.

        3. Mespo: ‘who’ was charting statistics ‘before’ 1973? And why do you include a statement from 1978??

          You are obviously cherry-picking statistics here.

            2. Snappy answer, Mespo.

              But ‘who’ was even tracking?? Until the late 1960’s, abortion was illegal in most states. So obviously no government agency or healthcare merchant could seriously track statistics.

              Countless family doctors may have performed abortions when they really saw the need. We shall never know. Yet you and Spastic seek to criminalize the practice again. Which would only lead to ‘less’ reliable statistics! How smart is that, Mespo?

  11. COLLINS SHOULD SUPPORT WOMEN

    Women at all levels of government should stick together and say, “No one’s taking away any rights we already have”. And that means “No” on Kavanaugh!

    It is the height of hypocrisy that a career playboy like Donald Trump should want to take away women’s rights. Trump didn’t even care about abortion until ran for president. Evangelicals made a bargain with the devil in supporting Trump.

    And why is the Kavanaugh nomination being rushed ‘before’ the midterm elections?? We should abide by the McConnell rule and wait until ‘after’ the midterms to fill SCOTUS vacancies. The people deserve a say in this matter.

    1. There is no “McConnell Rule.” It was the majority exercising their prerogative as the majority to ignore the nominee of the President. If you don’t like it, win a majority not make-up rules that don’t exist.

    2. It is the height of hypocrisy that a career playboy like Donald Trump should want to take away women’s rights.

      Only in unjust societies do perverted gynecologists escape imprisonment.

      1. Hey Spastic; give us a list of “unjust societies’. I’d like to see ‘who’ they are.

  12. COLLINS is notorious for making promises that sound dramatic and independent of party but she has rarely if ever kept them. I never believed her promise. She is a political opportunist. Happy to get that “maverick bump” but not happy to follow through. She is neither honest nor honorable.

    1. Anonymous:
      “Notorious”? I find her rather nondescript and anonymous until some close vote is required thrusting her into the limelight as a lukewarm Republican. Maybe you can detail the “dramatic and independent” sounding promises she’s made and then reneged upon?

    2. anominus

      She’ll continue supporting the war and property party. Until Citizens United is overturned, progress will always be micro slow.

  13. It’s called a Democracy and it always becomes a mobocracy which is why it was rejected nine times in the writing of the Constitution in favor of a “Representative” “Constitutional” “Republic” the latter mean of, by and for the citizens and that’s where you will find the democratic principles.

    Dressing it up in fancy verbiage doesn’t make it anything more than what it is or. the modern term may suit you better. Progressive Socialism.

    So much for Comrade Bacon’s end run. WATCH OUT FOR that POST! WHAM!

    1. ochlocracy is the word, it’s a good one, from the greek word for mob

      Supreme Court review is an institution that limits democratic initiatives. So, it is one of the features of American republicanism, more so than American democracy. Remember the article III judges including the SCOTUS are lifetime appointees. No term limits and no elections. And they are in a position to overturn the laws passed by the elected representatives.

      in the case of Roe and some other cases, it went from being an institution that limited democratic excess, to an instrument of judicial legislation cancelling democratic majority thinking and long established cultural and social norms, in favor of the morays of a newer, ascendant oligarchy.

      At this point, polls suggest convincingly that public opinion is majority in favor of legalized abortion, which is contrary to the situation when the judicial legislation of Roe was handed down in the 70s. So regardless of who is nominated it is unlikely to much change at all.

      1. At this point, polls suggest convincingly that public opinion is majority in favor of legalized abortion,

        Nope. Pretty consistent. About 70% of the public is, when asked, opposed to legal permissions which account for about 95% of the abortions performed in this country. Promoters of abortion get round this by conducting surveys in which they ask vague questions rather than brass-tacks questions.

  14. In 1908 Oregon and Michigan became the first to add recall. One version of he Supreme Court ruled it illegal where the State delegates to the federal congress were concerned thus making them instant untouchable royalty. Previously there were only two federal elected positions Pres and VP.

    In 1998 the federal legislature passed term limits. The court ruled that illegal for the no well ensconced aristocracy even though it wzas their Act of Congress.

    What I like is the chance to ‘revisit’ the court from time to time when it isn’t so far off in one direction and becomes more balanced. Now maybe States will be able to regain control of their own elected delegates, limit their terms of service and eject them at the will of the citizens.

    Citizens what’s that? You know the people who really do have skin in the game as opposed to passers by..

    And while you are at it Congess ask them to make Reps three year terms and President six years one only so we don’t have to put up with this crap every two years. Either that or do for real what the left is play pretending to do with the citizens in charge not the aristocracy

    It is not for the people unless they are actually IN control and not while they are treated like ‘people’ instead of citizens. .

    1. Michael Aarethun – Arizona voted for term limits for all its elective offices, including federal. John McCain filed suit claiming they did not have the power for federal offices and he won, sadly.

      1. If the constitution doesn’t hold U S Senators to term limits, why should Arizona expect to be the exception?

  15. My understanding is she assumed office more than twenty years ago. In my view nobody should serve more than two terms. So if she loses the election, I cannot see this being overly negative–one less elitist taking advantage of the citizenry.

    1. She’s not up until 2020, at which time she’ll be 67 years old. With 36 years as a federal employee under her belt, she’ll have an agreeable pension. She can afford to leave or lose. Since the advent of popular election, there haven’t been any Senators from Maine who served more than four terms and there were only a couple before that time.

  17. “Collins taking an artificial position reflects a broken Senate confirmation process”

    It could simply reflect Collins’ positioning herself as the Republican with a conscience, one who would vote against any judge with the ‘wrong’ personal opinion about a ruling that rests on a fairly broad definition of ‘privacy.’

    1. Or it could mean Collins does not bark at Schumers command and like most of that party vote at his and Pelosi’s command.

      Could be she sees him as exactly what she said and is correct in her position while the rest are just yip yappinng for their daily ration of bark on command puppy chow.

      1. Ms. Collins is responsible for her own duplicity. As to being somehow servile to Chuck Schumer, COLLINS is a Republican.

      2. Are you implying Susan Collins is actually a Democrat? All I would say is that she is a subscriber to the idea that Roe is a superprecedent that has established abortion as an enumerated right. If Collins is held captive by anything it’s beltway conventional wisdom.

    1. DBB:

      You forgot the qualifying phrase of our erstwhile Macbeth, “Told by an idiot, full of sound and fury,Signifying nothing.”

      Now I just have to figure out who is the “idiot,” the speaker or the object of the speaker’s derision.

  19. If she betrays her promises, then her constituents need to throw her out of office. She’s not going to take them seriously until her actions result in actual consequences.

  20. Now here’s a novel idea. A Senator or member of Congress, polls their constituency, or better still sets up a plebiscite/vote situation, and then votes that way for a Supreme Court Judge, any bill, anything. The time wasted with all the BS in this oligarchy could be well put to use including the voters. Other countries do it. What is wrong with America? What is wrong is that the system of government has sunk to the level of being solely about power and not representation. To have representation there cannot be any concentrated funding or purchasing of politicians. There has to be sufficient education of the voters on the issues. There has to be a valid and protected system of voting with proper ID, easy transportation, adequate voting places, from 6:00 am until 12:00 am. The act of voting must have no obstacles, no gerrymandered districts, no restrictions.

    The mechanics of the voting system must be of the primary importance. Or else we get what we have, an oligarchy and a circus.

    1. Your proposal is a complicated version of having a national election for SC judges. So it becomes just like Congress, except the judges get to wear black robes.

      1. No, Jay

        My proposal is better representation by elected officials. As it is now, when 90% of a Senator’s constituency wants tighter gun control, women’s rights, etc but the power of politics, or the party, says no, then the people’s wishes are placed aside in the interests of the power of the party. In the US, unique in the Western World, the power of the party is controlled by the special interests and oligarchs through funding, or to put it in real terms, buying and selling candidates. Thus, Collins, along with the other puppets, talk the talk of democracy or representation of the majority of their constituents but when it comes down to it their strings get pulled and they do what they are told by the oligarchs, special interests, through the party. It’s not much different on the left or the right. Members of Congress and Senators are bought and paid for by in large. There is missing in the US system of electing is an objective and independent manner of reflecting what the people want. That no longer exists in reality, only in the endless blather spewed by politicians.

        1. Which is why roughly 1/3 of eligible US voters, don’t vote. The system is far too corrupt. Voting in the US has nothing to do with Democracy.

    2. I hear a tinge of states rights in your argument. That is how this federalist system was intended but too much power was placed in Washington.

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