Members of President Donald Trump’s inner circle continue to plead guilty to a variety of crimes -- some potentially implicating the president himself. Yet, Sen. Susan Collins (R-ME) recently told reporters that she sees no reason to delay the confirmation hearings of Trump’s latest Supreme Court nominee, Brett Kavanaugh, even though he may have to rule on the president’s legal troubles one day. In particular, after meeting with Kavanaugh, Collins issued a statement saying she was unconcerned about his stance on Roe v. Wade because he told her he thinks Roe is “settled precedent.” Kavanaugh’s assurances mean nothing. And this isn't the first time Collins has fallen for the right-wing media talking point that Roe is safe because it’s “settled precedent.”
Kavanaugh is the seventh Supreme Court nominee that Collins has considered since she became a senator. During this time, she has voted to confirm Samuel Alito, John Roberts, Elena Kagan, Sonia Sotomayor, and Trump's first nominee Neil Gorsuch. After meeting with him, Collins said in her statement that Kavanaugh “expressed agreement with Chief Justice Roberts’ confirmation hearing statement that Roe is settled precedent and entitled to respect under principles of stare decisis.”
But as University of Washington lecturer Scott Lemieux wrote for NBC News, “Roberts’s claim, now echoed by Kavanaugh, that Roe was settled precedent is technically true, but not very meaningful.” Lemieux continued:
Roberts also correctly observed that the Court is not always bound by its own precedents, and the criteria he outlined for deciding when overruling a precedent is appropriate did not rule out the overruling of Roe.
And, at his confirmation hearings, Justice Samuel Alito said similar things to Roberts, asserting that Roewas (sic) a precedent entitled to “respect” but stopping well short of saying that it shouldn’t be overruled.
To say that Roe is an important precedent, or even a “settled” precedent, is merely stating a truism that does not in itself tell us anything about how a Supreme Court justice will rule on that precedent. What matters more than Roberts’s or Kavanuagh’s (sic) words are their actions, and they suggest that pro-life groups are right to be thrilled with the nomination of Kavanaugh if he agrees with them.
According to Lemieux, Collins’ position on Kavanaugh demonstrates that “opponents of legal abortion who supported Trump and Kavanaugh know exactly what they’re doing and what they’re getting in Kavanaugh” -- just as they did with other conservative judicial nominees -- and to suggest otherwise means “Collins is grossly misleading her constituents.”
New York magazine also noted: “The most important thing to keep in mind in parsing this carefully constructed assurance Kavanaugh offered to Collins is the broader context of Kavanaugh’s nomination (and before him, that of Roberts, Alito, and Gorsuch): the iron determination of Republicans since at least the George W. Bush administration to atone for the GOP-appointed justices — the longest-lasting being Anthony Kennedy — who supported abortion rights.” Therefore, the article continued, “It would be shocking if this process and the politics behind it produced a justice who looked at SCOTUS precedents on abortion and pronounced them unassailable.”
Independent of Collins’ own record of supporting conservative nominees who are hostile to abortion rights, her justification of supporting Kavanaugh because he allegedly believes Roe is “settled law” also echos right-wing media talking points. Since Justice Anthony Kennedy announced his retirement in June 2018, right-wing media oscillated between blithely assuring viewers that there was no threat to abortion access and arguing that Roe was “bad” law that deserved to be overturned. For example, an editorial in The Wall Street Journal argued that because “the Court has upheld [Roe’s] core right so many times, ... the Chief Justice and perhaps even the other conservatives aren’t likely to overrule stare decisis on a 5-4 vote.” Conservative lawyer Alan Dershowitz similarly claimed that Roe is safe because “true conservatives also follow precedent,” and therefore any conservative appointee would not vote to overturn it. Meanwhile, conservative media figures such as Fox News’ Jeanine Pirro and the Federalist Society’s Leonard Leo have explicitly argued that Kavanaugh would follow precedent with regards to Roe.
Collins may be falling for obvious right-wing media talking points, but even a casual look at the facts indicates it is misleading to suggest that Kavanaugh wouldn’t threaten abortion rights if given the chance. For example, Kavanaugh issued a dissenting opinion in a 2017 case, arguing that an unaccompanied pregnant immigrant teen who was in federal custody should not be allowed to obtain an abortion. In addition, for those like Collins who may still be holding onto the illusion that calling Roe “settled law” means anything, one need look no further than Kavanaugh’s praise for former Chief Justice William Rehnquist’s dissent in Roe v. Wade to understand how he might rule on abortion rights if confirmed.
Both Trump and Vice President Mike Pence have made crystal clear their intentions to reshape the judiciary to overturn Roe or otherwise make abortion less accessible. There’s no reason for Susan Collins to be falling for the right-wing media talking point about Roe being “settled law” this time around -- and if recent polling is to be believed, her refusal to face the facts about Kavanaugh could cost her reelection.