Posted on October 22,
2018
Collins’ Coup
Where was this speech a month earlier?
by
Daniel
Clark
When Sen. Susan Collins gave her speech declaring her
support for Supreme Court Justice Brett Kavanaugh’s
confirmation, and defending him against unsubstantiated accusations of sexual
assault, many of her fellow Republicans praised her for the courage it
supposedly took her to take that stand.
It’s as if none of them heard – or wanted to be bothered with – her
highly disturbing account of what he’d told her about his judicial philosophy.
Although practically nobody wanted the hearings to go
on any longer, the Senate should have postponed its vote until it could
interview the judge about what Collins had told them. The hearings to that point had been about all
the wrong things. They’d been prolonged
so that the FBI could investigate 35-year-old, unsupported, factually vacant
hearsay, but then they wrapped up without examining whether our newest justice respects
the Constitution or understands the role of the judiciary.
While
trying to assuage Democrat fears that Kavanaugh’s
presence on the Court would threaten Obamacare, Collins explained that “he has
argued for severing the invalid clause as surgically as possible, while
allowing the overall law to remain intact.”
The Court was expected to strike down the Affordable Care Act, until
Chief Justice John Roberts made up an excuse not to, because it did not contain
a severability clause. This meant the
law must either stand or be repealed in its entirety. Because its requirement to purchase health
insurance is unconstitutional, it should have been rejected altogether.
Collins is suggesting instead that Kavanaugh
believes the judiciary has the power to edit a law, whether that law has a
severability clause or not. If true,
this means he thinks the courts are allowed to morph a law into something the
legislature never approved. Conservative
senators should have been infinitely more concerned about this suggestion than
about whether or not the nominee had played drinking games in college.
Collins, who is pro-abortion, assures liberals that Kavanaugh would be inclined to uphold Roe v. Wade regardless of its lack of constitutional support,
because of his reverence for Supreme Court precedent. “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 … In other words, precedent isn’t a goal or an aspiration, it is a
constitutional tenet that has to be followed except in the most extraordinary
circumstances.”
Kavanaugh
should have been asked to cite the passage in Article III that backs up this
assertion, because there is none. If he insists
there is, then how can we trust that he doesn’t also see a right to abortion
tucked away in a “penumbra of liberty” that’s been collectively secreted by the
First, Third, Fourth, Fifth and Ninth Amendments?
Does
it even matter if he sees it there, or is it enough that others before him have
claimed that it exists? If the
Constitution requires obedience to precedent, then how is he bound to rule when
precedent conflicts with the Constitution?
If precedent is enmeshed in the Constitution through Article III, as
Collins says Kavanaugh believes, then does the
precedent supplant the language of the document, as if it were a
pseudo-amendment?
Kavanaugh
supposedly told Collins that a ruling should be overturned if it is “grievously
wrong,” but what does that mean? If a
precedent is simply wrong, isn’t that enough to compel its overturning? According to Collins, “When I asked him would
it be sufficient to overturn a long-established precedent if five current
judges believed it was wrongly decided, he emphatically said no.” What if those justices believed the precedent
was “grievously wrong”? Who decides what’s “grievous,” anyway?
Just because Kavanaugh is by
all responsible accounts an innocent man does not qualify him for the Supreme
Court. If Collins’ version of his
opinions is accurate, he believes in amending legislation from the bench, and
has created a constitutional requirement from which he assumes the power to
excuse himself. Collins’ contention that
these beliefs will result in liberal outcomes is an entirely rational
conclusion.
Collins, arguably the most liberal Republican in the
Senate, would not have made such a dramatic scene to support Samuel Alito or
Neil Gorsuch. She’s pretty sure that in Kavanaugh, she’s getting the best she could have hoped for from
a GOP administration. Her conservative
colleagues should have taken her speech as an alarm bell warning them of exactly
that, instead of simply as an excuse to declare victory and go home.
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