I’m gonna go ahead and treat this as the death knell for Mike Lee’s candidacy, as he’s very much “hostile” to Roe and hasn’t been shy about saying so. Collins was asked separately in the interview if she’s comfortable with all 25 people on Trump’s SCOTUS short list and she said no. Presumably he’s one of the sources of discomfort.
— State of the Union (@CNNSotu) July 1, 2018
I have no idea what she’s going for there at the beginning in trying to distinguish Plessy v. Ferguson from Roe as a matter of “settled law.” “Separate but equal” was on the books longer than Roe has been. If her view is that racial discrimination is bad whereas abortion on demand is good, just say that. Stop tapdancing around it by suggesting that some bad precedents are more equal than others. As Ben Shapiro points out, all the supposed stare decisis junkies on Roe spent the last 20 years cheering on Anthony Kennedy’s transformation of American law on gay rights.
The good news is that Collins seems willing to continue to let nominees do their own tapdancing around the Roe question in confirmation hearings. Lee is a nonstarter for her because he’s been so, so vocal in his belief that Roe is bad law, but that’s because he’s a politician. Most potential nominees are judges, with far less of a paper trail on abortion. Collins’s view seems to be that so long as a nominee pays some lip service to the importance of stare decisis and declines to say anything too hair-raisingly skeptical about a constitutional right to choose, he or she gets the benefit of the doubt. Noteworthy:
Susan Collins on CNN: “Justice Roberts has made very clear he considers Roe v Wade to be settled law.”
Collins adds: “I actually don’t” think Gorsuch would vote to overturn Roe.
— John McCormack (@McCormackJohn) July 1, 2018
Roberts is a jump ball but most conservatives are highly skeptical that the Scalia-esque Gorsuch would rubber-stamp Roe. If Collins was willing to cut him some slack on Roe and vote to confirm him despite his very conservative judicial temperament, her standards for a confirmable nominee in the present case are also destined to be broad. (John McCormack is right that, by Collins’s logic, the Kennedy vacancy *won’t* determine the fate of Roe. The three liberals plus Roberts and Gorsuch will save it!)
The obvious question mark in all this is Amy Coney Barrett, who may be Trump’s frontrunner. Barrett is widely assumed to be “hostile” to Roe but has she said enough in favor of stare decisis over the years to earn the same benefit of the doubt from Collins that Gorsuch got? Here she is in a speech given five years ago:
“I think it is very unlikely at this point that the court is going to overturn Roe or Roe as curbed by Casey. The fundamental element, that the woman has a right to choose abortion, will probably stand,” Barrett said. “The controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
On the other hand:
In a 2015 law review article on stare decisis, Barrett wrote in a footnote: “Scholars, however, do not put Roe on the superprecedent list because the public controversy about Roe has never abated.”
Barrett wrote in the article: “Superprecedents are cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds.” Barrett said super-precedents include Marbury v. Madison, Brown v. Board of Education, Mapp v. Ohio, among others.
Barrett’s definition of “settled law,” i.e. “superprecedent,” is a simple one. Is public debate over the matter “settled”? How can Roe be sacrosanct when roughly half the country still opposes abortion 45 years later? I don’t know what Collins will do with that during the hearing if Barrett’s the pick. But there’s one more factor worth remembering: Collins has already voted to confirm Barrett as a federal judge, just nine months ago when Barrett was installed on the Seventh Circuit. If she votes no this time, she’ll have to explain the sudden reversal — although that likely won’t be as hard as it seems. As Barrett herself wrote in the same article excerpted above, “For court of appeals judges, all precedent is superprecedent when it comes from the Supreme Court.” An appellate judge applies the Supreme Court’s view of the Constitution; a Supreme Court justice helps shape that view. Just because you trust Barrett to faithfully carry out the vision of a higher court doesn’t necessarily mean you’d trust her own vision as part of that higher court. Or at least that’s what Collins will say if she ends up giving Barrett thumbs down.