Much more than choice at risk with Kavanaugh nomination

With Donald Trump having nominated Brett Kavanaugh to fill Justice Anthony Kennedy’s seat, the eyes of Maine and the nation are on Sen. Susan Collins, who has long stated she, like most Mainers, is pro-choice. But as Maine voters look to November and beyond, every issue and every elective office matters.  

When it comes to Collins, she says she trusts sitting justices not to overturn precedents like Roe v. Wade. With that, Collins overlooks the activist nature of the current Supreme Court. As Reagan-era  Solicitor General Charles Fried (no relation) observed, in cases involving “voting rights, gerrymandering, affirmative action, abortion, campaign finance, and most recently mandatory agency fees to public sector unions — the Court has undermined or overturned precedents.”

President Donald Trump campaigned on picking judges who would overturn Roe v. Wade. Trump even floated the idea of punishing women who had abortions. The Kavanaugh pick thrilled anti-choice leader Marjorie Dannenfelser, who pointed to Kavanaugh’s opinions in cases involving abortion and birth control.

President Donald Trump has nominated Brett Kavanaugh to serve on the Supreme Court. (AP Photo/Evan Vucci)

Thus Collins’ statements on precedents look like she is trying to thread the needle between an anti-choice Republican Party electorate and Maine’s pro-choice general election electorate. Hearing from the state’s pro-choice majority could affect her vote. Even if it doesn’t, assuming Collins runs again, pushback will make her decision on Kavanaugh an issue for her 2020 reelection campaign.

Moreover, what happens with Kavanaugh raises the stakes for many other issues and for Maine legislative and gubernatorial races.

Beyond choice, the court matters for health care. A majority, including Kavanaugh, could side with the Trump administration and decide that insurers do not have to cover people with pre-existing conditions. If so, women who had breast cancer, men who had heart attacks, children with congenital conditions, and many others would not be able to get coverage.

Kavanaugh’s position on presidential power would render Trump and other presidents virtually unaccountable. He wrote in 2009 that sitting presidents should not face civil suits or criminal prosecutions and investigations while in office. Kavanaugh points to Congress’s ability to impeach the president, but without discovery via lawsuits and investigations by law enforcement, the public and Congress might not find out about impeachable acts.

With Trump being investigated by Special Counsel Robert Mueller and facing lawsuits from both private individuals and states, a Supreme Court with Kavanaugh could rule presidents do not have to testify in criminal proceedings and can pardon themselves.

The Supreme Court could also determine that asylum seeking parents and children can be separated and detained; allow extreme partisan gerrymandering and voter suppression; repeal current requirements for transparency in campaign donations; and further injure unions, employee rights and consumer protections. With Justice Anthony Kennedy gone, the court could undermine marriage equality and anti-discrimination laws.

Such decisions would fundamentally reshape American politics and public policy. They’d weight power further toward corporate wealth and and make it harder for the people to use lawsuits and votes to challenge political elites.

Many judicial decisions will affect what happens in states. While further undermining or overturning Roe v. Wade would enable states to preserve choice, that does not guarantee reproductive rights for Maine women.

For one, a Republican-controlled Maine Legislature and governor could ban and criminalize abortion. After all, the 2018 Maine Republican party platform opposes abortion (and even opposes marriage equality).

In the 2018 Maine governor’s race, Democratic nominee Janet Mills is a clear, consistent voice for choice. In contrast, Republican Shawn Moody has flipped from his 2010 race. As the Bangor Daily News recently reported,In a radio interview then, Moody said people’s choices on abortion are ‘up to them to make’ and he wouldn’t push a ‘personal or social agenda.’ Now, he says he has always been ‘pro-life.’”

For another, if Roe is overturned, a Republican-controlled Congress and President Trump could ban and criminalize abortion, making all U.S. House races even more significant, certainly including the one between Republican Rep. Bruce Poliquin and Democrat Jared Golden in Maine’s 2nd Congressional District.

Given Collins’ past votes on judicial appointments, it seems most likely that, despite his past statements and rulings on reproductive rights, she will vote to confirm Kavanaugh to the Supreme Court.

Meanwhile, every race this November and every vote people take is about the many critical issues that the Supreme Court will rule on and how other levels and parts of government will respond.


Amy Fried

About Amy Fried

Amy Fried loves Maine's sense of community and the wonderful mix of culture and outdoor recreation. She loves politics in three ways: as an analytical political scientist, a devoted political junkie and a citizen who believes politics matters for people's lives. Fried is Professor of Political Science at the University of Maine. Her views do not reflect those of her employer or any group to which she belongs.