Well of course Brett Kavanaugh is going to vote to overturn Roe v. Wade. Is there a single human being in this country who is surprised by this news? One? No one could be that gullible and naïve. Oh wait.
Maine Republican Senator Susan Collins on Tuesday morning, the day after the scoop-of-the-decade Politico leak, did indeed profess herself to be shocked and dismayed at the news that Kavanaugh and fellow Donald Trump appointee Neil Gorsuch appear to be ready to be part of a five-justice majority that will overturn Roe. She issued a statement saying that if Politico’s reporting is accurate, “it would be completely inconsistent” with what the two said during their confirmation testimony and what they told her in her office.
Reporters on the Hill had a chance to ask her, Tuesday morning, about that tortured statement she released back in 2018 when she announced she’d be voting for Kavanaugh. “My statement speaks for itself,” she said.
It sure does. It told us then, and tells us now, that Collins lives in a make-believe cocoon where it’s still the 1970s, and the pro-life movement doesn’t exist, and the Federalist Society isn’t around, and Supreme Court nominees come before the Senate and speak the plain truth and deserve to be taken at their word, even though it’s obvious to everyone watching that they’re lying through their teeth.
Let’s go back over that statement. It read horribly then, and it reads even worse today. She starts out by discussing other issues that come before the court, like Obamacare and presidential power. Eventually, she gets to the money issue, 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.”
Ah, you see? But he promised!
“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.”
In case you were hiking in Outer Mongolia at the time, I’m here to tell you that everyone knew Kavanaugh was lying through his teeth. Liberals knew it and were infuriated by it. Conservatives knew it and took giddy pleasure in it. Everybody knew.
Kavanaugh didn’t exactly keep his views on Roe hidden—he practically auditioned to be a Roe-killer. As Vox’s Ian Millhiser, then writing for ThinkProgress, explained in 2018, Kavanaugh gave numerous indications that he would vote to overturn Roe in public speeches and judicial opinions prior to his nomination. During his confirmation hearings, he expressed the opinion that “all roads lead to the Glucksberg test,” a reference to the ruling of Justice William Rehnquist (whose dissent in Roe Kavanaugh has also publicly praised) in Washington v. Glucksberg, in which the Supreme Court ruled unanimously that the Due Process Clause did not enshrine a right to assisted suicide.
As Millhiser explained, “According to Chief Justice Rehnquist’s opinion for the Court in Glucksberg, the question of which unenumerated rights are protected by the Constitution should be answered by asking which rights are ‘deeply rooted in this Nation’s history and tradition.’” In the leaked draft decision, Justice Samuel Alito’s reasoning tracks precisely with the idea of “the Glucksberg test,” as well as his hostility to rights not “rooted in history and tradition.” Or at least not rooted enough to his liking.
How Collins missed Kavanaugh’s opinion on “the Glucksberg test,” which he laid out at confirmation hearings she attended, is anyone’s guess. Either Collins was gullible or she, too, was lying. Or some combination thereof. I guess most liberals think she was just lying, but I’d put my marker down on 25 percent lying (if also to herself) and 75 percent gullible.
Collins comes from a very different time, now a long-dead world. She was first elected to the Senate in 1996, but going back to the mid-1970s, she worked as an aide to then-Maine GOP Representative and later Senator William Cohen, the fellow who went on to become Bill Clinton’s last Pentagon chief. Cohen was a genuine moderate at a time when there were loads of moderates in both parties, even a sprinkling of actual liberals in the Republican Party.
A person who has been functioning in that ecosystem for almost 50 years, years during which it has corroded from being a place of relative good faith to being the place it is today, where nearly every norm and custom is broken, is going to keep pretending that everything still works. That her own party, and the senator from Kentucky for whom she has repeatedly voted to make majority leader, are responsible for most of the breakage is a reality someone like Collins can’t possibly confront squarely, at least in public (whatever she thinks in private). Her actions reflect the idea that she still believes that the place functions the way it used to—that a judicial nominee sitting down with a senator and submitting to her questions for two hours is an exercise in something meaningful and not just the cynical box-ticking on the nominee’s part that he knows he has to perform so he can get naïve senators to vote for him.
It would all be forgivable, I suppose, except look who pays for Collins’s suspended-in-aspic belief system: poor women; women whose net worths aren’t a few million dollars, like Collins’s; and women who don’t live in New England, where the right to an abortion will likely remain legal. Her land of make-believe maybe made her feel good, and it apparently helped her get reelected, but it is going to harm thousands of women. And that is not forgivable.