Whether you liked it or not, Sen. Susan Collins’ speech on confirming Brett Kavanaugh to the Supreme Court mattered.
The Senate is supposed to give its “advice and consent” to Court nominations, but there are no rules about just what it ought to take into account. Collins provided a clear statement on this point, important no matter whether a voter accepts the guidance she drew from it.
There are four elements she could have included in her analysis and she addressed three, including the most important – what kind of a judge is the nominee.
To her credit, Collins read his opinions and sought the advice of legal experts. She did the work that members of the Judiciary Committee should have done, but gave little sign of having done in their partisan fury to confirm or deny Kavanaugh.
Remember that on the vast majority of Supreme Court nominations, the Senate respects the president’s choice. Ruth Bader Ginsburg, a Democratic liberal, received 96 of the 100 possible votes. It was reasonable to assume that Collins, a Republican, would support President Trump unless Kavanaugh’s record revealed he was not in the judicial mainstream.
Because opponents feared he would align with already sitting conservatives on the Court to form a majority, he could hardly be said to be outside today’s judicial norms. Opposed specifically because of his conservatism, critics assumed that he would join with other justices to reverse Roe v. Wade and enhance presidential power.
Collins interpreted his record optimistically. She accepted his assurances at face value. While she might have overcome her worries on abortion rights or same sex marriage as the result of her analysis, she is certainly open to criticism for having given Kavanaugh the benefit of the doubt in every case.
He can either prove Collins wrong and justify the opposition’s charges or he can consider himself bound by her interpretation of his record and keep to it.
If her main level of review was judicial, she first mentioned the obvious political considerations surrounding the nomination. Trump was committed to naming a conservative. As Collins noted, opposition to this or any other Trump nomination could expected to be instant and automatic.
The fervor of the opposition probably made her splitting with the Republicans more difficult. She might seem to be giving in to pressure instead of making up her own mind. In fact, some claim the blistering opposition may have motivated Trump voters to more active support for GOP House candidates next month.
Obviously, Collins did not like the pressure, much of it coming from Democratic voters who might not have supported her in 2020. Because she took her time, she became exposed to great pressure and the ultimate attacks on her.
Her third focus was on the alleged sexual assault by Kavanaugh on Christine Blasey Ford, when both were teenagers. Collins concluded it had not been proved.
Voters were left to wonder if proof would have blocked confirmation. Some senators obviously let the FBI report settle their vote. Was the Kavanaugh-Ford issue enough to topple the nomination or even legitimate grounds for ignoring other aspects of his record? On this confirmation test, the jury is still out.
Collins did not touch Kavanaugh’s judicial temperament. Does he have the reserved and thoughtful detachment we expect of judges? His response to the Ford charges was heated, undisciplined and obviously political. She left it alone.
Yet it may have revealed more about him than his judicial record, his expected judgments on the Court or the Ford case. Senators knew he was conservative, but he proved to be outright partisan.
In what was a laudable attempt by Collins to apply an “advice and consent” standard that went beyond the partisanship of most of the other senators, she missed one of the most important concerns – Kavanaugh’s demeanor as a judge.
It is too soon to know what effect her decision will have on her political future. Even she can’t know now, unless she plans to retire.
In the end, her vote did not decide confirmation. She might have created a tie, which Vice President Pence would have broken for Kavanaugh.
Had she caused his nomination to be rejected, Trump was said to have a far more conservative appeals court judge, a woman, ready to nominate.
In all this, there is a message for voters. Kavanaugh is on the bench because Trump is president. The energy spent in this nomination conflict is needed in all elections. More than ever, the country needs wide and sustained involvement in the political process.