U.S. Sen. Susan Collins, R-Maine, has a nuanced position on how the abortion issue will play into her assessment of President Trump’s next Supreme Court nominee, and several leading legal scholars say her reasoning does not stand up to scrutiny.
Collins, a critical confirmation swing vote in the Senate, has repeatedly said that her primary focus will be the nominee’s respect for the decisions previously made by the court. One who respects such precedents, she argues, would not turn over Roe v. Wade, the 1973 decision that legalized abortion nationwide.
The Maine Republican — who is coming under increasing pressure from reproductive rights advocates — has said she will not use Roe support as a litmus test for a nominee, though one who openly “demonstrated hostility” to Roe would be disqualified in her mind because it would indicate an “activist agenda” inappropriate for a role as a justice.
“A nominee’s personal views on Roe v. Wade are not relevant to my decision,” Collins told NewsCenter Maine (WCSH/WLBZ) on Wednesday. “What is relevant is whether they’re committed to longstanding precedent.”
But experts say this approach in no way protects Roe, both because Supreme Court justices overturn precedents all the time — including in a landmark case regarding public sector unions at the end of last month — and because the real danger to abortion rights isn’t an outright repeal but rather a narrowing of how the right is defined to the point where access is difficult or impossible for many women.
“The fact that something is one of the court’s precedents plainly does not and has not stopped the court from revisiting the issue,” says Lori Ringhand, associate dean for academic affairs at the University of Georgia School of Law and co-author of a book on the confirmation process. “Precedent doesn’t bind justices.”
William Yeomans, a career Justice Department official who served as a Senate Judiciary Committee staffer and now teaches at Columbia Law School, says “it should be taken for granted” that Trump’s nominee will vote to overturn Roe “unless he or she states explicitly otherwise,” because the president has pledged that his nominees will do so. Collins’ focus on precedent, he says, is at best an effort to provide herself political cover.
“Adherence to precedent has become the all-purpose escape for nominees and senators who want to avoid learning too much about a nominee’s views,” Yeomans said via email.
‘This is a key moment’
Paul Shiff Berman, a law professor at George Washington University, says the real threat to Roe isn’t that the case itself will be overturned but that the court will allow states a wider range of limitations on providing or receiving abortions. Many states have been aggressive in this regard, with 14 requiring women to obtain medically unnecessary ultrasounds before they can have the procedure and 16 states regulating abortion providers as if they were ambulatory surgical centers, making it difficult for any to operate.
“So the assurance that a justice will adhere to precedent and not literally overturn Roe v. Wade is not really likely to answer the question as to the practical impact on women’s right to choose,” Berman said.
The principled position, he asserted, would be for Collins to refuse to confirm anyone until after the Justice Department’s special counsel, Robert Mueller, has concluded his investigation of Trump’s contacts and relationships with Russia. “Senators should not confirm any appointment this president makes until after the Mueller investigation has concluded, because whoever he is about to pick might well rule on the fundamental questions as to whether a president should pardon himself or can be subpoenaed by a grand jury and so forth,” he said.
“This is a key moment where she in particular has an opportunity to defend the U.S. constitutional structure against a descent into authoritarianism,” Berman added. “There’s never been a more important time for her to actually play the role she has often adopted for herself.”
Fidelity to the Constitution
Richard Fallon Jr., a constitutional law professor at Harvard Law School and former staffer to Collins’ first boss, then-U.S. Rep. William Cohen, says justices must balance two competing legal principles in considering a case: respect for precedent and fidelity to the Constitution. Sometimes these can be in tension, as in a case such as Brown v. Board of Education, where justices overturned a century of cases defending racial segregation in public schools because they violated the Constitution.
“Everybody thinks today that Brown was rightly decided because, as a substantive matter, government-mandated segregation was so despicable,” Fallon said via email. “Some people think Roe was despicable. If so, this consideration would affect how they balance the principles.”
The result, he says: There’s no way to entirely get away from the legal and perhaps moral merits of Roe.
Collins, whose office did not respond to requests for comment for this story, is regarded by reproductive rights advocates as critical to their last-ditch effort to prevent a rollback of Roe. She and Lisa Murkowski of Alaska are the only Republican senators who are pro-choice. If they both defect, they could deny a nominee the 51 votes required to be confirmed to a lifetime appointment on the court. The nomination is especially consequential because it will likely change the ideological composition of the court on Roe, as retiring Justice Anthony Kennedy had been one of its defenders and Trump has pledged to appoint justices who will repeal it.
Trump is expected to announce his nominee Monday night.
In various media interviews last week, Collins and her spokeswoman, Annie Clark, said the senator will not ask any nominee’s personal opinion on Roe v. Wade or any other specific issue and would instead look to determine whether he or she would uphold precedent.
‘Fundamental tenet’ of the judiciary
Last Sunday Collins told CNN’s Jake Tapper that she would not support a nominee who “demonstrated hostility” to Roe v. Wade precisely because “that would mean to me that their judicial philosophy did not include a respect for established decisions, established law, and I believe that that is one very important fundamental tenet of our judicial system which … helps to promote stability and evenhandedness.”
Carl Tobias, a law professor at the University of Richmond who studies federal judicial selection, praised Collins for her principled position. “The overarching question for nominees really is precedent, and I think that she appreciates that is rare,” he said. “We want our justices to be open-minded and fair and take each case on the law and facts. So extracting promises and asking them their opinion beforehand seems inappropriate.”
Ringhand agreed that this is an important consideration but not the only one before senators such as Collins. “I think most people agree that nominees should not be making promises for the purpose of gaining a seat, but there is also broad agreement that senators have a serious constitutional duty to exercise bona fide oversight here,” she said. “The hard part is how to reconcile those things in cases like Roe.”