Susan Collins has a precedent problem.
Take a look at a transcript of the speech Maine’s senior senator gave to her colleagues in October of 2018, in which she announced her support for then-Judge Brett Kavanaugh’s elevation to the U.S. Supreme Court.
Eighteen times during the 43-minute address, Collins used the word “precedent.”
As in: “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.”
And: “As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked.”
And: “When I asked him whether it would be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said no.”
Music to her ears back then, no doubt. Based largely on those assurances from Kavanaugh, Collins cast a critical swing vote to put him on the nation’s highest bench and thus tilt the court decidedly to the right.
But now, with her bid for election to a fifth term hanging by a thread, Collins once again has some explaining to do.
Collins’ focus back in 2018 was on widespread fear that Kavanaugh, upon joining the court, would eventually vote to overturn the landmark abortion case Roe v. Wade. Short of that, his critics predicted, he would join with the court’s other conservative justices in chipping away, case by case, at a woman’s right to control her own body.
The critics were right.
On Monday, Kavanaugh and a conservative minority on the court lined up behind a Louisiana law that would have severely limited a woman’s right to an abortion in that state.
The good news is that the conservatives lost, 5-4 – the four liberal justices, along with Chief Justice John Roberts, tossed the Louisiana law, just as the court did four years ago with a virtually identical statute in Texas.
But here’s the problematic part for Collins: Roberts, who actually voted to uphold the Texas law in 2016 (now-retired Justice Anthony Kennedy sided with the liberals against that one), reversed his position this time for one simple reason.
“The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote in an opinion separate from the rest of the majority. In other words, while he disagreed with Monday’s actual ruling, he nonetheless respected the precedent established by the court four years ago.
And what about Kavanaugh, the onetime proponent of all things precedential? Did he back up all those lofty promises he made to Collins and follow Roberts’ lead?
Not a chance.
In his two-page dissent this week, Kavanaugh made no mention whatsoever of stare decisis – the Latin term for precedent, which means “to stand by that which is decided.” Instead, he voted to uphold the Louisiana law until it could undergo “additional fact-finding.”
So, here we are again, asking the same old questions: Was Collins hoodwinked? Or did she buckle under intense pressure from her Republican leaders and vote to confirm Kavanaugh, hoping all the while that when his promises to her evaporated, somehow none of us would notice?
In a short, prepared statement Monday, Collins once again demonstrated her adeptness at the political version of Twister – that 1960s game in which contestants contorted themselves trying to simultaneously touch multiple circles on a large, color-coded plastic mat.
First, she reached for her support for women’s choice, saying Monday’s court ruling correctly “recognizes the burden that the Louisiana statute could impose.”
Next, she stretched to swat away those “who suggest that this opinion is an indication of how certain justices would vote on the question of whether abortion will remain legal.” Such speculation, Collins said, “is reading too much into this specific decision.”
Finally, bending over backwards to address her support for Kavanaugh, she concluded that “he gave no indication in his dissenting opinion that he supports overturning Roe.”
Of course he didn’t. Nor did Roberts, who many think simply chose to defuse this political bombshell in the home stretch to a presidential election (see: former FBI Director James Comey, circa 2016) and wait for another of the 16 abortion cases now in the appellate pipeline to deep-six Roe once and for all.
What Collins completely dodged in her statement, however, was Kavanaugh’s glaring disregard, at this moment, for precedent. The legal principle that was supposedly so important to him – and to her – two years ago is apparently now an afterthought, a pledge he never had any intention of keeping.
At the same time, Collins sidesteps the obvious: While Kavanaugh said what he needed to say in 2018 about respecting Roe as precedent, he has no compunction whatsoever about dismantling it piece by piece. Sure, it’s an almost-half-century-old legal edifice, but that’s not going to stop the court’s most junior justice from throwing rocks through its windows.
The reality here is that Collins, either through naivete or political calculation, made a bet back in 2018 that Kavanaugh’s professed allegiance to stare decisis would not come back to haunt her. And now that it has, with her approval rating already tanking and Election Day just four months away, she can only insist nothing has changed, that she’s doing just fine on that Twister mat even as it gets pulled right out from under her.
There is ample, ahem, precedent for this phenomenon. In fact, it goes all the way back to a 1996 television debate, when an audience member asked Collins and her two Republican primary opponents how they felt about federal term limits.
“I do support term limits and I have pledged that if I’m elected, I will only serve two terms,” replied Collins, who, once again, is now seeking her fifth term. “Twelve years is long enough to be in public service, make a contribution and then come home and let someone else take your place.”
To quote another Latin phrase, Senator, “Potius sero quam nunquam.”
Better late than never.
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