Posted on October 22, 2018
Where was this speech a month earlier?
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 This meant the law must either stand or be repealed in its entirety.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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