Sen. Susan Collins Explains Why She Doesn’t Believe Kavanaugh Will Vote to Overturn Roe v. Wade

By CNSNews.com Staff | October 7, 2018 | 11:11 AM EDT

Sen. Susan Collins and Judge Brett Kavanaugh (Screen Capture)

(CNSNews.com) - When Sen. Susan Collins went to the House floor on Friday to say that she was going to vote for the confirmation of Brett Kavanaugh to the Supreme Court, she explained why she did not believe Kavanaugh would vote to overturn Roe v. Wade.

She suggested, instead, that he would be like Justices Sandra Day O’Connor, Anthony Kennedy and David Souter—all of whom, she noted, were appointed by Republican presidents at a time when the Republican platform called for overturning Roe.

All joined in the Supreme Court's 1992 opinion in Planned Parenthood v. Casey opinion that upheld Roe.

Most notably, Collins said in her explanation of why she was not worried that Kavanaugh would overturn Roe that Kavanaugh had told her when they were discussing his nomination that he did not think five sitting justices—a majority of the nine member court—would be a sufficient number “to overturn long-established precedent.”

This was after he had testified, she noted, that Roe--upheld by Casey--was “precedent on precedent.”

“Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as precedent on precedent,” said Collins in her floor speech. “When I asked him whether it would be sufficient to overturn a long-established precedent if five current Justices believed it was wrongly decided, he emphatically said no.”

Here is the transcript of the section in Collins’s speech on Kavanaugh where she discusses Roe v. Wade:

“There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me. 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.

“He believes precedent ‘is not just a judicial policy…it is constitutionally dictated to pay attention and pay heed to rules of precedent.’ 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.

“The judge further explained that precedent provides stability, predictability, reliance, and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court, in Brown v. Board of Education, overruled Plessy v. Ferguson, correcting a ‘‘grievously wrong’’ decision, to use the judge’s term, allowing racial inequality.

“But someone who believes the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances in which a decision is ‘grievously wrong’ or ‘deeply inconsistent with the law.’ Those are Judge Kavanaugh’s phrases.

“As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight such that the precedent can’t be trimmed or narrowed simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.

“Noting that Roe v. Wade was decided 45 years ago and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.

“Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe 8 years later. In describing Griswold as ‘settled law,’ Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today.

“Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as precedent on precedent. When I asked him whether it would be sufficient to overturn a long-established precedent if five current Justices believed it was wrongly decided, he emphatically said no.

“Opponents frequently cite then-candidate Donald Trump’s campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all Presidential campaigns has included this pledge since at least 1980. During this time, Republican Presidents have appointed Justices O’Connor, Souter, and Kennedy to the Supreme Court. These are the very three Republican President-appointed Justices who authored the Casey decision which reaffirmed Roe.

“Furthermore, pro-choice groups vigorously opposed each of these Justices’ nominations. Incredibly, they even circulated buttons with the slogan: ‘Stop Souter or Women Will Die!’ Just 2 years later, Justice Souter coauthored that Casey opinion, reaffirming a woman’s right to choose. Suffice it to say, prominent advocacy organizations have been wrong.

“These same interest groups have speculated that Judge Kavanaugh was selected to do the bidding of conservative ideologues, despite his record of judicial independence. I asked the judge point-blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, or to any outside group on how he would decide cases. He unequivocally assured me he had not.”

 


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