GARDINER — I write this in the hope that it may in some small way diminish the personal animosity that’s found its way into the discussion of Sen. Susan Collins’ vote to confirm Judge Brett Kavanaugh to the Supreme Court.
I have something of an insider’s perspective, as I was a member of a working group, consisting of five former and current staffers, all attorneys, assembled by Collins to help her review Kavanaugh’s record and formulate questions for him. Lest it be assumed that the group was politically homogeneous, I voted for the Democrat in the last 13 presidential elections.
• Collins’ vote to confirm was anything but a foregone conclusion. Our working group had six briefings on Kavanaugh’s judicial record by attorneys from the nonpartisan Congressional Research Service. The senator attended each one. In addition, we read and discussed what we deemed his most significant opinions, speeches and articles. The culmination was a substantive two-hour meeting (which I was privileged to attend) between the senator and the judge, followed by a one-hour phone call.
The process became less structured after Dr. Christine Blasey Ford’s allegation, but we still had informal exchanges on difficult issues such as where the burden of proof should lie, as the senator struggled to determine the fairest way to resolve the conflicting testimony of two very credible witnesses. Whatever one’s view of Collins’ ultimate decision, there is no denying the thorough and objective manner in which she approached it.
• Kavanaugh’s record is more mixed than often assumed. Given space limitations, let me focus on two widely held misconceptions.
Kavanaugh did not rule that an undocumented minor does not have a right to an abortion. He asserted in the case in question that the government should have a short period of time to find a custodian for the minor as long as it could be done without unduly impeding her access to the abortion. He rejected the position of another dissenting judge that Roe v. Wade simply did not apply.
Kavanaugh did not state that employers may invoke religious objections to deny employees access to contraceptive health services. Asserting that government has a compelling interest in providing such services, he reached the very opposite conclusion. He did argue that the services should be provided in a manner that least intrudes on the employer’s religious beliefs, a position ultimately accepted by the Obama administration.
In both instances, Kavanaugh occupied the middle ground on very controversial issues. There is reason to believe he will work to find compromises on a court hopelessly divided along ideological lines.
• Had Kavanaugh been rejected, the addition of just one seat to the Republican majority in the Senate would almost certainly lead to a more conservative selection. Among those strongly opposing Kavanaugh was the socially conservative Judicial Action Group, in large part because he refused to rule that an undocumented minor does not have a right to an abortion and that employers may deny contraceptive coverage for religious reasons.
As they said in a letter to Majority Leader Mitch McConnell, they found the other names on the president’s short list far more palatable, something with ominous implications if there were still a vacancy on the court and a larger Republican majority in the Senate after the midterm elections.
• Collins has been consistent in her approach to Supreme Court nominations. As she explained in her floor statement, a major consideration for the senator is not whether a nominee agrees with her on all issues, but rather whether the nominee’s views are in the mainstream of legal thought. Among those vouching for Kavanaugh in this regard was Lisa Blatt, a former clerk for Justice Ruth Bader Ginsburg and a self-described “liberal Democrat and an unapologetic defender of a woman’s right to choose.” Collins applied the same standard in voting to confirm Justices Sonia Sotomayor and Elena Kagan.
The purpose of the foregoing is not to win converts to the appointment but rather to counter unwarranted, and at times inflammatory, assertions that have taken the Kavanaugh debate beyond mere incivility to a frightening level of personal hostility.
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