With one week until President Donald Trump is scheduled to announce his nominee to replace retiring Supreme Court Justice Anthony Kennedy, Sen. Susan Collins, R-Maine, has established herself as an obstacle to an anti-abortion nominee, but the bar she is setting may be easier to clear than it sounds.
"I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law," Collins said on CNN's "State of the Union" Sunday.
President Trump plans to reveal the nominee next Monday, with the hope of getting them through the Senate before the midterm elections. He has said the nominee will come from a list of judges approved by conservative organizations that he released early in his presidency. His previous nominee, Justice Neil Gorsuch, also came from that list.
Collins met with Trump at the White House last week to discuss the vacancy, along with Sen. Lisa Murkowski, R-Alaska, and three red state Democrats who voted to confirm Gorsuch. With a 51-49 GOP majority in the Senate and Sen. John McCain, R-Ariz., out due to cancer treatment, any one of them could cast the deciding vote for the nominee.
"The President really was soliciting my views on the type of nominee that I was looking for," Collins told CNN. "I emphasized that I wanted a nominee who would respect precedent, a fundamental tenet of our judicial system."
Progressive groups have taken no solace in Collins’ stance. She voted to confirm Justices Samuel Alito and Neil Gorsuch despite concerns by abortion rights activists and court-watchers that they would vote down Roe if given the chance.
“In the next interview, let's hear Susan Collins answer whether she will insist that a nominee pledge to ‘uphold Roe.’ If she cares so much about following precedent, that would be a natural thing to insist of any nominee,” tweeted Brian Fallon, executive director of Demand Justice, a group planning to lead a campaign against Trump’s nominee.
President Trump said Monday he had met with four candidates for Kennedy’s seat that morning, and he assured journalists in the Oval Office his eventual pick will be “outstanding.”
The White House took further steps toward a nomination Monday, announcing the White House Counsel’s Office will oversee selection and the confirmation process and Deputy Press Secretary Raj Shah will take leave from his current post to handle communications, strategy, and messaging. Justin Clark of the Office of Public Liaison will lead outreach to key constituencies and allies.
Kennedy was nominated by President Ronald Reagan in 1987 and provided the deciding vote in many contentious cases over the last 30 years, including some that infuriated conservatives and others that frustrated liberals. Famed attorney Alan Dershowitz said Monday the president should nominate a libertarian conservative to fill his seat.
“A libertarian emphasizes the rights of individuals over the state,” he explained. “A statist conservative is one who thinks that the government, whether it be the state or federal government, should have all the power and all doubt should be resolved in favor of the governmental power… So I’m hoping the president nominates a libertarian who believes in precedent.”
In addition to his position that such a choice would more consistent with the Constitution, Dershowitz suggested the political reality of the situation necessitates it as long as pro-choice senators like Collins control the balance of power.
“Remember he has at least two, maybe three, Republican senators who will make it difficult for him if he nominates someone who will want to willy-nilly overrule Roe v. Wade or other important precedents,” he said. “We live in a world where the president gets to nominate with the advice and consent of the Senate, and the Senate’s in the hands of the Republicans, but Republicans aren’t monolithic.”
Although Trump often vowed during the campaign to select justices who will overturn Roe, he has been more circumspect since actually taking office. He said he will not ask potential nominees to replace Kennedy where they stand on the matter.
"Roe v. Wade is probably the one that people are talking about in terms of having an effect, but we’ll see what happens," Trump told Fox News in an interview that aired Sunday, adding, “But it could very well end up with states at some point.”
Experts have noted the list Trump plans to choose from was approved by the conservative Federalist Society or Heritage Foundation and therefore all prospects are very likely to oppose the Roe decision.
“I think anyone that’s gotten through either the Heritage Foundation or Federalist Society got onto their lists because the groups knew or had reason to believe the person would overturn Roe,” said Jeffrey Segal, SUNY distinguished professor of political science at Stony Brook University.
Leonard Leo, an executive vice president at the Federalist Society who is taking a leave of absence to help with the confirmation process, denied that a potential nominee’s opinion on Roe is a litmus test.
“I don’t think at the end of the day it’s about Roe v. Wade, it’s about having judges on the court who are going to interpret the Constitution the way it’s written,” Leo told “Fox News Sunday.” “And part of interpreting the Constitution is taking into account major precedents, and that’s going to happen.”
Collins did not indicate which names on Trump’s list she would reject, but at least a few are on the record criticizing the Roe v. Wade decision. The others may prove harder to read since, like most recent nominees, they will probably refuse to answer questions about matters that may come before the court.
“In the post-Bork era, judicial nominees are extremely reticent to say anything about a case that could come before the court,” said Daniel Epps, a professor at Washington University School of Law and former clerk for Justice Kennedy, referring to Robert Bork, Reagan’s failed first nominee for the seat Kennedy eventually filled.
“It’s just sort of seen as uncouth and unprofessional because judges are supposed to be blank slates,” said Sara Benesh, an associate professor of political science at the University of Wisconsin-Milwaukee and a contributor to Washington University’s Supreme Court Database.
It is not unusual for a president to avoid explicitly asking a potential nominee their views on abortion, but answers to questions about issues like privacy rights and the principle of stare decisis can make their position transparent.
“They’ll find ways to ask about Roe without actually asking about Roe,” Benesh said.
Collins has often placed an emphasis on precedent, believing that a justice who respects past decisions would not strike down a 40-year-old ruling that she considers settled law. Experts are skeptical that “respecting precedent” should be seen as any guarantee that a justice would not overturn Roe or any of the closely-decided opinions where Kennedy was a swing vote in favor of progressive causes.
“Every nomine who’s ever come before the Senate, if asked if he or she respects precedent, will answer yes…,” Segal said. “Respecting precedent doesn’t mean you would never vote to overturn a precedent.”
However, the confirmation of a new justice who wants to reverse Roe is also no guarantee that abortion will be outlawed anytime soon, if at all.
“They don’t often overturn major decisions that are entrenched in society in the way Roe v. Wade is,” Benesh said.
Collins insisted Gorsuch’s stance on precedents indicates he would not throw out a long-decided ruling, even though he voted to overturn a 1977 law last week. She also doubts Chief Justice John Roberts would get rid of what he has described as “settled as a precedent of the court.”
“If I was a betting person, I would say I don’t think Roberts would vote to overturn Roe, but they surprise me every now and then…,” Benesh said. “A membership change and an immediate overturning of Roe would really harm people’s perceptions of the institution.”
Epps, who co-hosts “First Mondays,” a podcast about the Supreme Court, is unsure how Roberts would vote, less because of the chief justice’s views than because he has at times taken uncharacteristically liberal stances on controversial and politically sensitive issues like the constitutionality of the Affordable Care Act.
“He, as chief justice, is very concerned about the court doing things that are unpopular and preserving the court’s legitimacy,” he said. A Kaiser Family Foundation poll released Friday showed about two-thirds of Americans oppose overturning Roe.
Segal agreed Roberts is a wild card, but he added, “If I were someone in NARAL, that’s not a lot to be secure about.”
While the outcome of a direct challenge to abortion rights is difficult to predict, it seems almost certain the court will face such a case in the years ahead. Even before Kennedy retired, conservative state legislatures were crafting laws that could serve as vehicles to enable the high court to reevaluate the landmark decision.
“The smarter thing for pro-life legislatures to do is to do this piece by piece, just really to go slowly to build up precedents against Roe…,” Segal said. “I think Roberts would have an easier time overturning Roe if over the next five years there are three or four decisions that cut back abortion rights in smaller ways.”
State lawmakers in Arkansas are already at work on a bill that would prohibit nearly all abortions to be considered in their next term in 2019. Benesh suggested they may be setting their hopes too high.
“I don’t expect the Supreme Court is going to overturn Roe,” she said. “What I do expect is they’ll keep upholding restrictions.”
All that considered, Epps is unsure what to make of Collins’ threat to reject an anti-Roe nominee.
“It could mean something quite significant in terms of the kind of nominees she will insist on, but I don’t think it really would,” he said.
Almost everyone on Trump’s list would likely support a law against abortion or measures that severely restrict it, according to Epps, but few, if any, would say so during the confirmation process. If Collins does not recognize that, he suggested she is “either lying or very naïve.”
“What she’s doing is just posturing to look good to her Maine constituents,” he said.
Collins has held firm against pressure from President Trump before, delivering one of the three Republican votes that killed an Affordable Care Act repeal bill last summer. However, she relented to pressure from the White House and the majority leader on tax reform in December and she has never voted against a Supreme Court nominee from either party.
“She can prove us wrong,” Epps said, “but I am just at the moment a little skeptical there’s much bite there in what she’s saying.”