GARDINER — The attacks on Sen. Susan Collins for her vote to confirm Brett Kavanaugh to the Supreme Court are based on a misperception, repeated in a Monday Press Herald article, that she was supporting an “anti-abortion” judge.
The reality is quite different. Voting to confirm Kavanaugh represented the best, possibly the only, hope to preserve Roe v. Wade. With apologies to the Twitter addicts, this requires some explanation.
When Kavanaugh was nominated in July 2018, it was widely reported that the choice had been narrowed down to four candidates. The selection of Kavanaugh dismayed some groups on the religious right fervently opposed to abortion, as they saw Kavanaugh as the candidate most likely to uphold Roe.
This point was clearly made in a letter to senators from the Judicial Action Group : “We informed the President and Senate leadership that we favored one prospect, believed two prospects were acceptable …, but that the fourth prospect, Kavanaugh, was unacceptably risky.” Kavanaugh’s record, the group went on to say, indicated he would not be “a true constitutionalist like Justice Clarence Thomas” but rather “a swing vote like Justice Anthony Kennedy.”
Other, similarly minded organizations stated their objections more strongly. Reflecting the betrayal felt by some, a columnist on the Renew America website characterized the selection of Kavanaugh as a Trojan horse, while Georgia Right to Life called for the nomination to be withdrawn. In the New Boston Post, which describes itself as the hub of conservative thought, a columnist bemoaned Trump’s failure “to nominate a moral values constitutionalist who would be willing to stand up against abortion and homosexual marriage.”
The aspect of Kavanaugh’s judicial philosophy that gave Collins comfort – his strong commitment to upholding established precedent – had the opposite effect on the religious right. A contributor to the American Family Association website stated his concerns in no uncertain terms: “(Kavanaugh’s) commitment to precedent seems to make Roe immune to reversal for another generation.”
Why is it relevant that of all the candidates on President Trump’s short list, Kavanaugh was the one most likely to uphold Roe? Cannot one assume that if Kavanaugh could not have been confirmed, a nominee more hostile to abortion would have suffered the same fate? That notion overlooks a significant change in the political landscape during the three months between when Kavanaugh was nominated and when his confirmation vote was held.
At the time of Kavanaugh’s nomination, Republicans had a 51-49 majority in the Senate. Thus, the White House must have recognized that they would almost certainly need a “yes” vote from one of the two pro-choice Republican senators – Lisa Murkowski or Susan Collins. That clearly worked in Kavanaugh’s favor.
By contrast, by the time the Kavanaugh confirmation vote was held, the midterm election was only a month away, and it had become increasingly clear that Republicans would increase their majority in the Senate. Had Kavanaugh been rejected, the White House surely would have waited until after the election to choose a replacement.
As matters developed, the midterm election increased the Republican majority to 53-47, not surprising given that 26 of the 35 Senate seats up for election were held by Democrats. By submitting the replacement nomination after the new Senate convened, the White House would no longer have needed Murkowski or Collins, thereby freeing it to select a person on its short list more likely to reverse Roe. The result would have been to put a woman’s right to choose in greater peril.
In an ideal world, one’s options have no limits, but in the real world, one often has to choose from options determined by others. That was the situation facing Collins, who had to choose between Kavanaugh and a replacement nominee who would almost certainly have been more hostile to Roe.
Those of us old enough to remember the days before Roe v. Wade know that even if it is reversed, women of means will have access to abortions. By contrast, it will be poor women who will lose the basic right to control their own bodies. Those who attack Collins for trying to minimize that possibility – in some cases because they covet the Senate seat she holds – are subordinating the rights of these women to their own political interests.
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