As President Donald Trump prepares to pick someone to replace retiring U.S. Supreme Court Justice Anthony Kennedy, many are eyeing Maine’s senior senator as one of the few Republicans who might stand in the way of a right-wing successor to a judge who often provided the swing vote on the nine-person court.
They are likely to wind up disappointed.
Since taking office in 1997, Collins has weighed in on five previous nominees who span the ideological spectrum. She backed them all — and consistently deplored the way the nomination system has become such a political fight.
Collins told reporters this week that while she would like to see Trump name somebody akin to Kennedy, “what I’m most looking for is a justice who will follow the law and the Constitution, who has the judicial temperament that I look for.”
“The Senate must put aside partisanship, must avoid political considerations, and must evaluate court nominees with great care and with great fairness,” Collins said during an earlier battle over a nominee many Republicans opposed.
Kennedy, appointed three decades ago by President Ronald Reagan, has proven a generally conservative justice who has sided with more liberal colleagues on a handful of high-profile issues, including abortion and gay rights. He is often the swing vote when the court is closely divided.
Collins said this week that she has “the utmost respect for the service of Justice Kennedy. He authored a lot of landmark cases, he brought great integrity and intelligence to his judgment and decision making, and he has left a lasting legacy on the court.”
“What I most liked about Justice Kennedy is he did not identify with any ideological block on the court, but rather was a justice who evaluated every case, not ideologically, but based on its merits and adherence to the law and the constitution,” the senator said.
For Democrats, there is concern that a successor chosen by Trump will tip the balance against Roe v. Wade, the controversial 1973 decision that made abortion legal across the country, as well as other hotly contested legal issues. Republicans, on the other hand, generally hope that’s exactly what will happen.
Whoever Trump selects, most everyone involved in the process anticipates a vicious partisan battle targeting the handful of senators, such as Collins, whose allegiance isn’t immediately obvious.
Given that the Senate is held by Republicans, Democrats cannot block a nominee unless their own ranks remain solidly in opposition — which may prove impossible — and they pick up a couple of GOP senators. Hence the focus on Collins, whose vote against the repeal of the Affordable Care Act last summer showed her willingness to defy the administration.
A number of observers have pointed to Collins as one of the best bets for standing up to a nominee who might shift the court sharply to the right, including New York magazine, Vox and NBC. Her name was tossed around on cable television constantly as partisans on both sides tried to guess what she might do.
Collins herself downplayed her role.
“My vote’s no more important than any other of the 99 Senators with whom I serve,” she told a gaggle of reporters on Capitol Hill.
Looking back on what she said during earlier appointment battles, it’s clear Collins is more interested in a nominee’s approach to the job than she is in how a prospective justice might vote on any particular issue.
Instead, as Collins put it on the Senate floor during the 2006 confirmation of Justice Samuel Alito, “We must engage in a rigorous assessment of the nominee’s legal qualifications, integrity, and judicial temperament, as well as the principles that will guide the nominee’s decision-making.”
In 2010, while declaring her intention to back Elena Kagan for a seat on the Court, Collins said the Senate “must ensure that judicial nominees have qualities befitting the post.”
“Senators must examine each nominee’s competence and expertise in the law, judicial temperament, and integrity as demonstrated throughout his or her professional career,” Collins said on the Senate floor.
“Determining a nominee’s fitness to serve a lifetime appointment to the nation’s highest court is one of the most critical and consequential responsibilities any senator face,” she said.
“In considering judicial nominees, I carefully weigh their qualifications, competence, professional integrity, judicial temperament, and philosophy,” Collins said.
“I believe it is also critical for nominees to have a judicial philosophy that is devoid of prejudgment, partisanship and preference. Only then will the decisions handed down from the bench be impartial and consistent with legal precedents and the constitutional foundations of our democratic system,” Collins said.
When Collins endorsed Sonia Sotomayor in 2009, she said she knew “that I will not agree with every decision Justice Sotomayor reaches on the Court, just as I disagree with some of her previous decisions.”
“However, upon reading these decisions, talking personally with her, and hearing her responses to probing questions, I have concluded that Judge Sotomayor understands the proper rule of a judge and is committed to applying the law impartially without bias or favoritism,” Collins said.
Collins also showed with her endorsement of Kagan that she is willing to vote for a nominee with whom she disagrees on a key issue.
She said that Kagan “has taken positions with which I disagree. It appears that her personal opinion on gun rights is at odds with my own.”
But Collins said she could vote for Kagan anyway because the nominee tapped by President Barack Obama told a congressional hearing she would follow precedent and not upset settled law about the right to bear arms.
“I believe Ms. Kagan will respect the precedent established in these two important cases,” Collins said. “Ms. Kagan’s responses on several issues indicate that she appears to understand and embrace judicial restraint and the limits of when courts should and should not intercede in matters.”
The respect for precedence — basically honoring earlier decisions of the court almost always — is a recurring one for Collins, who considers Roe v. Wade as another area that justices ought to regard as settled law.
Last year, when she joined colleagues in approving the nomination of Neil Gorsuch, Collins said she asked him directly about how he approaches precedents.
“I asked him if it would be sufficient to overturn a long-established precedent if five current justices believed that a previous decision was wrongly decided,” she said. “He responded: ‘emphatically no.’ And that, to me, is the right approach.”
In endorsing Alito, Collins said she believed he would be “a justice who will exercise his judicial duties guided not by personal views, but based on what the facts, the law, and the Constitution command.”
Annie Clark, communications director for Collins, said Thursday the senator will follow tradition and talk directly with the person Trump picks and support hearings that will spotlight them before a Senate vote.
Collins said during the Gorsuch nomination fight last year that it is “appropriate for the Senate to use its advice and consent power to examine nominees carefully, or even to defeat them.”
“But playing politics with judicial nominees is profoundly damaging to the Senate’s reputation and stature,” she said. “It politicizes our judicial nomination process and threatens the independence of our courts, which are supposed to be above partisan politics.”
“Perhaps most important, it undermines the public’s confidence in our judiciary,” Collins said.
“Since the Founders protected against the exertion of political influence on sitting justices, the temptation to do everything in one’s power to pick nominees with the ‘right’ views is understandably very strong,” the senator said.
“But the more political Supreme Court appointments become, the more likely it is that Americans will question the extent to which the rule of law is being followed,” Collins said. “It erodes confidence in the fair and impartial system of justice and cultivates a suspicion that judges are imposing their personal ideology.”
“The Senate has the responsibility to safeguard our nation against a politicized judiciary,” Collins said.
Supreme Court nominees that Susan Collins voted for:
John Robert, 2005
Samuel Alito, 2006
Sonia Sotomayor, 2009
Elena Kagan, 2010
Neil Gorsuch, 2017
She has never opposed one.
U.S. Sen. Susan Collins (AP file photo)