U.S. Sen. Susan Collins has taken relentless criticism for her decision to support Trump Supreme Court pick Brett Kavanaugh, although she says she has consistently evaluated all judicial nominees in the same way, regardless of who is president.

A Portland Press Herald/Maine Sunday Telegram analysis of Collins’ record shows she has approved almost every federal judge she’s voted on, regardless of party.

Trump nominees are no exception – even as critics have pointed to an unprecedented lack of qualifications and display of prejudicial views by many of the president’s judges as grounds for opposition.

In her 23 years in Congress, Collins has weighed more than 1,000 confirmations to the Supreme Court, district and circuit courts, including 615 roll call votes in the Senate under four different administrations.

The decisions have shaped the makeup of the federal court system and affected how important cases are decided across the country.

“The district courts are the first line of defense, so to speak,” said Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst. “They make very important decisions that across the board affect people’s lives – from reproductive rights to fair due process rights, the rights of criminal defendants and so on.”

Collins, who faces what will likely be the most expensive re-election campaign of her career this year, declined requests from the newspaper made over several weeks for an interview on judicial nominations. Instead, she issued a short statement:

“Regardless of who is serving as our President, I have consistently evaluated nominees based on their qualifications, experience, judicial temperament, and respect for precedent, the rule of law, and the Constitution,” she said. “I do not consider a nominee’s personal beliefs, political or otherwise; however, I do evaluate whether a nominee can set aside these beliefs and rule fairly and impartially.”

COLLINS’ RECORD 

The Portland Press Herald/Maine Sunday Telegram reviewed the 615 roll call votes on judicial nominees taken by Collins from the start of the 105th Congress – her first term in office in 1997 – through the end of December.

Almost every judge who goes to a vote gets approved, as the majority leader usually won’t bring a nominee to a vote if the votes aren’t there to get a confirmation. The Senate also has to vote to end debate on a nominee before they go to a final vote, which further ensures that when a final vote is taken it usually results in a confirmation.

In fact, in Collins’ career there has only been one vote – the 1999 nomination of Ronnie White to the U.S. District Court for the Eastern District of Missouri – that failed.

Overall, Collins has voted yes on 96 percent of nominees who have gone to a roll call, and she has rejected 25, or 4 percent. Republicans have fared slightly better, with President George W. Bush gaining her approval 99 percent of the time and President Trump, through December, 95 percent of the time.

Collins supported 98 percent of Clinton nominees made during her time in office and 94 percent of Obama nominees.

Congress doesn’t analyze the voting records of individual senators, and two progressive advocacy groups, the Alliance for Justice and People for the American Way, also said they did not track records of individual senators. So it’s not clear how Collins’ voting record on judicial nominees compares to her peers.

Two conservative groups, the Judicial Crisis Network and Article III Project, did not respond to requests Friday on whether they track the information.

A handful of other Republicans have voiced occasional opposition to Trump judges, though, including Sen. Lisa Murkowski’s unusual “present” vote on Kavanaugh.

Former Arizona Republican Sen. Jeff Flake voted in December 2018 against 8th Circuit Judge Jonathan Kobes, who was deemed “not qualified” by the American Bar Association. Sen. Mitt Romney, R-Utah, voted in May against the confirmation of Michael Truncale, the U.S. District Judge for the Eastern District of Texas, who in 2011 commented that President Barack Obama was an “un-American impostor.”

Twenty-seven Republicans, excluding Collins, also voted against Trump’s pick of Mark Bennett, a former Hawaii attorney general who supports gun control, to the 9th Circuit in July 2018.

FROM CONSENSUS TO CONTROVERSY

In the last two decades, controversy around nominees has increased. While 56 percent of roll-call votes were decided unanimously during Collins’ first Congress under the Clinton administration, that number had dropped to 20 percent in the 115th Congress – the first two years of Trump’s term.

The shift is the result of rules changes affecting the nomination process as well as a generally more partisan environment.

“Just look at the atmosphere in Washington right now,” said Carl Tobias, a law professor at the University of Richmond. “It’s polarized and politicized on a number of fronts, and judicial selection is just one of them.”

In the Clinton administration, Collins’ only “no” vote was the White nomination, which was decided along party lines, though she later was the only Republican to confirm White when he was renominated by Obama in 2014.

In the Bush administration, Collins opposed just two nominees: J. Leon Holmes, an Arkansas judge who had made controversial remarks about rape and abortion, and William Pryor, a Catholic who urged for Christianity to play a greater role in American life and who also opposed abortion.

The latter nomination was approved as part of a deal Collins helped negotiate with a bipartisan group of senators called the “Gang of 14” to prevent Democrats from filibustering – or stalling debate on – Bush nominees.

In exchange Republicans agreed not to invoke the so-called “nuclear option,” which would lower the number of senators needed to end debate on a nominee from 60 votes to a simple majority of 51. The consensus, however, was short-lived.

OBAMA ERA OBSTRUCTIONISM

Under the Obama administration, Collins voted “no” on a total of 14 out of 224 nominations that went to roll-call votes – her highest disapproval rate of any presidency.

It was around that time Obama criticized Republicans for “unprecedented obstructionism” on judicial nominees while they claimed the president was trying to “pack the court” in an effort to fill three vacancies on the D.C. Circuit Court of Appeals.

The court is seen as the nation’s second most powerful court because its judges rule on cases involving the federal government and are often promoted to the Supreme Court.

In response in 2013, Democrats pushed through a rules change that invoked the nuclear option and lowered the vote threshold needed to end debate on lower-level judicial nominees.

Collins did not vote to support the rules change, but she did vote to confirm one of the Democrats’ nominees, Patricia Millett, and was one of just two Republicans to do so.

On the other two, Robert Leon Wilkins and Cornelia Pillard, Collins voted against the nominations but was the only Republican who voted to end debate and allow the nominations to go to a final vote.

Goldman, the expert from Amherst, pointed to her actions around the 2013 rules change as an example of her trying to maintain her position as an independent amid party pressure.

“Of course she wants to maintain the image of being an independent and someone who goes her own way, but it’s very difficult to be an independent in the Senate, if not impossible,” Goldman said.

In an editorial in the conservative Maine Wire, Collins wrote in 2013 that she was against a rules change when it was suggested by Republicans in 2005 and lowering the threshold to end debate would give the majority party unprecedented power.

“I am extremely disappointed in today’s vote, which will fundamentally change the Senate,” Collins wrote. “It will only produce further partisanship and discourage efforts to forge consensus on the many difficult issues facing our nation.”

The decision set the stage for 2017, when this time, Republicans sought to change the rules and invoke the “nuclear option” for Supreme Court nominees while considering Trump’s nomination of Neil Gorsuch.

This time Collins voted to support the change, citing the 2013 decision by Democrats as contributing to increasing partisanship.

“While I appreciate the efforts of my colleagues who worked with me in an attempt to prevent this result, the momentum toward this unfortunate end of the judicial filibuster was simply too great to stop,” she said at the time.

NAVIGATING CONTROVERSIAL NOMINEES

Today when a nomination is made, Collins said she weighs it using the same criteria she has repeatedly cited throughout her career: qualifications, experience, judicial temperament and respect for precedent.

The rules changes, however, have made it easier for the majority party to have the final say on which nominees are brought to a vote. When a president and Senate are of the same party, it almost ensures the president’s nominees will go through.

Collins, who has built her career as a moderate and touted her ability to work across the aisle, is often looked to by Democrats as a possible swing vote – something that was highlighted in 2018 during the controversial Kavanaugh nomination.

To date, she has supported every Supreme Court nominee who has gone to a vote – a total of six during her tenure.

In 2016, she was among a minority of GOP senators who agreed to meet with Obama pick Merrick Garland, saying it was “not fair and not right” for colleagues to refuse to give consideration to Garland.

During the Gorsuch nomination, Collins also pleaded with Democrats to not filibuster, saying on the Senate floor that to do so would be a “serious mistake.”

Gorsuch was ultimately approved 54-45 but only after the Republican rule change that would later pave the way for Kavanaugh to come to a vote and secure a seat on the Supreme Court by a two-vote margin.

Democrats and independents have criticized Collins for supporting Kavanaugh, who they fear could be used to reverse Roe v. Wade, and the vote has hurt her support from Planned Parenthood and women’s groups.

In the months following, Collins has also come under fire for her support of other Trump nominees, as the president and Senate Majority Leader Mitch McConnell, R-Ky., have pushed through a record number of justices, aided in part by additional changes.

In April, Republicans put in place a two-hour limit for debate on district court nominations and other lower-level appointments made by the Senate, though Collins and one other Republican, Sen. Mike Lee of Utah, voted against the move.

“That was a change she apparently thought was not necessary,” said Arthur Hellman, a professor of law at the University of Pittsburgh School of Law.

“I think that’s a tribute to her independence and what people call due diligence. She considers each of these proposals and each of these candidates as an individual question to be considered and doesn’t necessarily go along with the Republican majority.”

Republicans have also stopped honoring the Senate’s “blue slip” tradition for nominees, a courtesy that in the past had allowed senators from the home states of nominees to essentially block appointments.

About 80 percent of Trump’s circuit court nominees have been men and about 90 percent white, according to a March report from the Congressional Research Service.

Many are members of the Federalist Society, an organization of conservatives and libertarians formed to promote the nomination of judges with conservative views, particularly on social issues like abortion.

In August, Collins was met by protesters while attending a fundraiser at the Northeast Harbor home of Leonard Leo, the group’s executive vice president, who has been dubbed Trump’s “judge whisperer.”

In the 115th Congress, Collins voted to confirm every Trump judicial nominee who came to a roll-call vote – a total of 59 – including three who received “not qualified” ratings from the American Bar Association.

They were Leonard Grasz to the 8th Circuit Court of Appeals, Jonathan Kobes to the 8th Circuit and Charles Goodwin to the Western District of Oklahoma.

Other Trump nominees Collins has approved include John Bush, a Kentucky circuit court judge who compared abortion to slavery and disparaged gay rights in blog posts made under a pseudonym, and Neomi Rao, a D.C. circuit court judge whose college writings implied sexual assault victims were to blame for their crimes.

She also voted to support former Texas Supreme Court Justice Don Willett, who defended past tweets making fun of transgender people and same-sex marriage during his Senate confirmation hearings for the 5th Circuit.

The support has prompted criticism from Collins’ potential opponents, who have taken her to task for not standing up to Trump and McConnell on justices who are not qualified or who have exhibited prejudicial views.

“At the very least we should only consider nominees who are qualified, display a temperament fit for the bench and show respect for precedent,” said Maine House Speaker Sara Gideon, who is among the Democrats vying for Collins’ seat.

“Unfortunately even that low bar isn’t being met right now, and we’ve seen Sen. Collins be part of Mitch McConnell and Donald Trump’s effort to change the composition of the court.”

“Sen.Collins has done exactly what Mitch McConnell needed her to do when she is a deciding vote on a judge, regardless of whether they allegedly assaulted women,” said Betsy Sweet, a Democrat who is also a potential challenger. “If he needs a vote, she will give it to him, and when her vote is not critical, she applies different standards.”

Recently, Collins has voted “no” on an increasing number of Trump nominees, a move some experts say could be an attempt to win back moderate and Democratic voters put off by the Kavanaugh vote.

“I do think there are a lot of people who were unhappy with her on what happened with Kavanaugh,” said Tobias, the expert from the University of Richmond. “She needs to get some of those independent moderate voters to be sure she can win this next time up.”

In each of the eight instances where Collins has opposed a Trump nominee, she was the only Republican to do so. Each was approved despite her opposition, a circumstance that has led critics to charge that she only votes against her party when her vote won’t change the outcome.

Two of the nominees Collins opposed, Lawrence VanDyke and Sarah Pitlyk, received “not qualified” ratings from the bar association.

Others include Chad Readler, whom Collins criticized for failing to defend current law under the Affordable Care Act, and Matthew Kacsmaryk, who she said showed “alarming bias against LGBTQ Americans and disregard for Supreme Court precedents.”

LEGACY OF THE KAVANAUGH VOTE

The Kavanaugh vote – which Collins has since defended – has been a particular target for her critics and potential challengers, who have pointed to her “yes” as a need for change in Washington.

Bre Kidman, a Saco defense lawyer among potential challengers, disagreed with Collins’ assessment that Kavanaugh has the proper judicial temperament to serve on the nation’s highest court.

“These choices have the capacity to shape the American jurisprudence,” said Kidman, who cited the vote as part of her motivation to challenge Collins. “Judges decide how the law is used. I think a lack of transparency around what rubric is used to make those decisions rubbed me the wrong way.”

Other challengers, including Democrat Ross LaJeunesse, independent Danielle VanHelsing and Green Independent Lisa Savage, also criticized the vote and Collins’ record on Trump nominees.

“Collins has fallen in lockstep with the Trump administration since day one,” Savage said. “She’s a completely different person from the old Sen.Collins we used to have in Maine.”

In October 2018, after weeks of pressure from both sides, Collins came to the Senate floor to explain her reasoning on Kavanaugh as well as to criticize the process.

“Our Supreme Court nomination process has been in steady decline for more than 30 years,” she said. “One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.”

Goldman, the professor from Amherst, said what happens next is up to who gets elected in 2020. The next president will likely have the opportunity to name at least one Supreme Court justice.

Another conservative justice would cement the court’s current 5-4 conservative majority and increase the chances for Roe v. Wade to be overturned.

If Democrats take over both the presidency and the Senate, there will likely be payback for the number of conservative justices appointed under Trump.

“It makes a difference who sits on the courts, and it makes a difference who the senators are,” Goldman said. “I think the voters of Maine are going to have to make a decision for themselves on what they would like to see.”


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