Read more of this story here from SCOTUSblog by Andrew Hamm.
[Editor’s Note: The afternoon after this post was published, Sen. Pat Roberts, a Republican of Kansas, met Judge Brett Kavanaugh and tweeted that he “will support his nomination.”]
After Justice Neil Gorsuch’s nomination to the Supreme Court in January 2017, attention turned to whether Senate Democrats would use the filibuster, a maneuver to block final action on an issue until a 60-vote majority can force a vote. If they did, would Republicans enact the “nuclear option,” a rule change to eliminate the filibuster for Supreme Court nominations?
“Please, don’t do it this time,” Republican Sen. Susan Collins of Maine, speaking last year about the filibuster, beseeched Democratic Sen. Michael Bennet of Colorado, as Carl Hulse reported in the New York Times.
Last year Collins and Bennet, among other senators from each party, hoped to reach a deal to prevent a filibuster and avoid the nuclear option. They were unsuccessful – Democrats filibustered, Republicans changed existing Senate rules, and Gorsuch was confirmed on April 7, 2017.
Consistent with last year’s rule change, Republicans need 50 votes to confirm current nominee Judge Brett Kavanaugh. Democratic Sen. Doug Jones’ victory over Roy Moore in the Alabama special election last fall brought the Republican majority from 52 to 51. In addition, Republican Sen. John McCain remains home in Arizona while undergoing treatment for brain cancer, with former Arizona Gov. Jan Brewer dismissing the notion that McCain might resign so current Gov. Doug Ducey can appoint a replacement. With only 50 voting senators, Republicans may not be able to afford a single “no” vote, and the recent failed nomination of Ryan Bounds to the U.S. Court of Appeals for the 9th Circuit gives some on the left hope that confirmation is not inevitable. (In this post, Jon Levitan addresses the possibility that one or more Democrats may choose to vote “yes” on Kavanaugh’s confirmation, which would give Republicans some leeway.)
According to SCOTUS Watch, which “tracks the public statements made by United States senators about how they plan to vote,” 31 Republicans are “likely yes” and 16 (including McCain) are “definitely yes” on the confirmation. This leaves four “unknown” – Collins, Sen. Lisa Murkowski of Alaska, Sen. Rand Paul of Kentucky and Sen. Pat Roberts of Kansas. All four of these senators voted to confirm Gorsuch. Collins, Murkowski and Roberts also voted in 2006 to confirm Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit; Paul was not in the Senate at that time.
As Li Zhou wrote for Vox the night of Kavanaugh’s nomination, “all eyes are on” Collins and Murkowski. This week Zhou reported that the two women are “taking their time evaluating the nominee,” with whom neither has yet scheduled an appointment.
On Tuesday, Collins told reporters that she would schedule a meeting with Kavanaugh after further reviewing his record, saying that “it’s not going to be any time immediately because I still have a ton of work to do on his decisions, his law review articles, a lot of others.”
As Maggie Haberman and Jonathan Martin reported in the New York Times before Kavanaugh’s nomination, Senate Majority Leader Mitch McConnell of Kentucky was “concerned about the volume of documents that Judge Kavanaugh has created” in his career, which, Haberman and Martin wrote, “McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote.” And although at least two Democratic senators – Sen. Joe Manchin of West Virginia and Sen. Joe Donnelly of Indiana – have scheduled meetings with Kavanaugh, other Democrats have refused to provide him customary “courtesy visits” in a dispute over the release of documents. Some Democrats are pushing for access to all communications from Kavanaugh’s time in the White House, but Collins on Tuesday said only, “I want to see documents that he himself wrote. … It does not make sense to ask for those documents just because he touched them, initialed them,” as Jordain Carney reported for The Hill.
In a CNN interview after Justice Anthony Kennedy’s retirement, Collins told Jake Tapper that she “would not support a nominee who demonstrated hostility to Roe v. Wade.”
Asked by Tapper about President Donald Trump’s campaign promise that opposition to abortion would be a “litmus test” for his selection of Supreme Court justices, Collins said that “the president told me in our meeting that he would not ask that question, and that’s what he has most recently said on the advice of his attorney. So, I think what he said as a candidate may not have been informed by the legal advice that he now has that it would be inappropriate for him to ask a nominee how he or she would rule on a specific issue.”
Collins emphasized for Tapper the importance she places on a nominee’s respect for precedent, which she called a “fundamental tenet of our judicial system.” She said she did not think that Gorsuch would overturn Roe, saying “someone who devotes that much time to writing a book on precedent [“The Law of Judicial Precedent”], I think, understands how important a principle that is in our judicial system.”
A co-author of the same book on precedent: Judge Brett Kavanaugh.
Collins has said that she would not ask Kavanaugh about his “personal views” on Roe, but called “very interesting” a speech he gave last year about the work of former Chief Justice William Rehnquist, who dissented in Roe. In her analysis for this blog of this speech and a past opinion in an abortion case for the D.C. Circuit, Amy Howe suggested that even if Kavanaugh is not a fifth vote to overturn Roe, he could become the fifth sitting justice “to believe that various restrictions on abortion do not rise to the level of an ‘undue burden’ on a woman’s right to terminate her pregnancy.”
“You’re going to get a lot of pressure from groups and individuals who support abortion rights,” Tapper predicted in his interview with Collins. Indeed, commentary to this effect has come from Richard Chen in the Portland Press Herald and Brianne Gorod in the Bangor Daily News, among others.
According to Zhou, Murkowski “has held her cards a bit closer to the chest,” although her initial press release, like Collins’, “didn’t seem to suggest an inclination toward blocking him,” Zhou concludes. In an interview with C-SPAN’s Washington Journal this week, Murkowski said that “trying to identify or distill out that there is one issue that for me will guide my determination on this nomination … that’s not how I operate. I have been looking at Judge Kavanaugh and his record holistically.”
Laura Bassett for the Huffington Post reports that a survey by a Democratic polling firm indicates that 68 percent of Maine voters and 63 percent of Alaska voters do not want Roe overturned.
However, Collins, who is up for re-election in 2020, faces a closed primary, which means that only registered Republicans are able to vote. The reported polling indicates that just 46 percent of Maine Republicans want Roe upheld. What this indicates for how Collins may assess the political implications of her vote on Kavanaugh is unclear. But one factor for her may be the need to survive the primary.
Murkowski, who is not up for re-election until 2022, faces a different situation. The Alaska Division of Elections website states that “voters registered with the party affiliation of Republican, Nonpartisan or Undeclared may vote” in the Republican primary. According to Alaska statistics from early July, about 55 percent of Alaskan votes are nonpartisan or undeclared, and about a quarter are Republican. The reported polling indicates that although only 32 percent of Alaska Republicans want Roe upheld, 72 percent of “Independents” do. But again, what this means for Murkowski, who lost the Republican primary in 2010 but won re-election as a write-in candidate, remains unclear.
In more recent days, Paul, the third “unknown” Republican vote according to SCOTUS Watch, has attracted attention. As Burgess Everett reported for Politico, Paul in an interview called himself “honestly undecided” on Kavanaugh’s nomination because Kavanaugh has “very strongly and explicitly” expressed the position that “national security trumps privacy.”
Yet in this same piece, Everett quoted Paul as asking, rhetorically, “Wouldn’t you rather have Kavanaugh than Ruth Bader Ginsburg?” Everett writes that “Republican leaders are laying off Paul for the most part, figuring a heavy hand won’t work,” with some confident that Paul “ultimately will fall in line, since opposing Kavanaugh could wreck the senator’s relationship with the president.” Kavanaugh and Paul met on Tuesday, but what they discussed and whether it moved Paul remain unclear.
It does not appear that Roberts, SCOTUS Watch’s fourth “unknown” Republican, has commented on the pending nomination except for a press release congratulating Kavanaugh and saying that he looks forward to meeting him.
Two corrections have been made to the original version of this post, which had identified Brewer as the current governor of Arizona and Alaska’s Republican primary as open only to registered Republicans. The information about Alaska voters’ party affiliations and Murkowski’s 2010 primary defeat has been added to provide additional context given that the primary is in fact open to some non-Republicans.
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