In this image from video provided by Senate TV, Sen. Susan Collins, R-Maine., speaks on the Senate floor about her vote on Supreme Court nominee Judge Brett Kananaugh, Friday, Oct. 5, 2018 in the Capitol in Washington. Sen Shelly Capito, R-W.Va., sits rear left and Sen. Cindy Hyde-Smith, R-Miss., sits right. (Senate TV via AP)
Yesterday, Sen. Susan Collins of Maine became the face of the Republican Party when she spoke on the Senate floor to defend her party’s — and her — support for Brett Kavanaugh, Trump’s pick to fill the Supreme Court seat being vacated by retiring Justice Anthony Kennedy.
Collins is articulate, and delivered a speech that on its face seemed thoughtful and reasoned. But at its core, it was disingenuous.
Let’s start with Dr. Christine Blasey Ford. Either Sen. Collins doesn’t believe her, or thinks what happened to her doesn’t matter. She tried to dance around that issue. Unwilling to call Ford a liar, Collins in effect called the evidence against Kavanaugh insufficient — based on a blatantly insufficient FBI followup investigation whose results were kept secret — and argued that he deserves the benefit of the doubt.
This argument falls apart under even cursory examination. Dr. Ford’s testimony, by itself, would be enough to find criminal or civil liability in any court without more. Testimony is evidence, period, and there is no legal rule or precedent requiring that testimony be corroborated. Juries decide “he said – she said” cases all the time, based on judging the credibility of the witnesses who testified.
But Dr. Ford’s testimony isn’t uncorroborated. The surrounding circumstances corroborate it at numerous points: Ford and Kavanaugh were in physical and social proximity in 1982, when the alleged incident occurred, and easily could have come in contact as Ford describes. There’s plenty of evidence — including Kavanaugh’s own words of the time, and the recollections of people who knew him, including his college roommate — that he was a hard-drinking partier — contrary to how he portrayed himself in the confirmation hearings. The fact he misrepresented his past, itself, suggests he’s lying about other things, too.
Something did happen to Ford, and she had talked about it — to her husband and therapist — years before Kavanaugh appeared on Supreme Court radar. Her friends, too, were aware of something in her past — trauma is hard to fake. Recognizing this was persuasive evidence that she didn’t make up the allegations, the GOP tried to cast her accusation against Kavanaugh as a case of mistaken identity, but that effort collapsed when Ford testified she was “100% sure” of who her attacker was, and the GOP didn’t pursue that line further.
I’ve practiced law for over 40 years, have heard thousands of witnesses testify, and I haven’t a scintilla of doubt that what Ford says happened did. Whether that should be disqualifying 36 years later might be up for debate; he was 17 and she was 15 at the time, and the right apology coupled with genuine remorse together with a responsible record as an adult conceivably could earn him forgiveness for a youthful mistake.
But that’s beside the point, because a couple days before her floor speech, Sen. Collins said “it is disqualifying” if true. That being the case, the conclusion is inescapable that she has chosen to believe Kavanaugh over Ford, no matter how cleverly she tries to obscure it. Either that, or she has decided that what Kavanaugh did to Ford 36 years ago just doesn’t matter, even absent any admission and taking of responsibility on his part.
Sen. Collins, unwilling to overtly call Ford a liar, tried to hide behind rhetoric couched in terms of “fairness” to Kavanaugh and giving him the benefit of the doubt. But even taking these arguments at face value, instead of the dodge they are, it is the public — not the nominee — who is entitled to the benefit of doubt; and it’s impossible to give this deference to Kavanaugh without being unfair to Ford.
Which brings us to deference. Sen. Collins sought to define the Senate’s constitutional duty of “advise and consent” as a limited role constrained by deference to presidential authority to appoint judges. She immediately set herself up as a hypocrite when she did so, because where was this deference when her party refused for over a year to give Merrick Garland, President Obama’s Supreme Court nominee, even nominal consideration in order to hold that seat open for a future Republican president to fill? Neither Collins nor any other GOP senator is in a position to argue Trump’s nominees are entitled to greater deference than their leadership showed to Obama’s judicial nominees, dozens of whom were blocked in the GOP-controlled Senate.
Collins’ deference argument is a cop-out. It’s simply another vacuous argument, devoid of real substance, intended to provide cover for a partisan vote for a nominee who is too partisan to be a judge. Kavanaugh is a career GOP employee. His nomination was a slap in the face to Democrats; he worked for Ken Starr on the Clinton impeachment, and helped justify Bush43’s secret torture policies. Trump chose him explicitly to fulfill his campaign pledges to appoint Supreme Court justices who would overturn Roe v. Wade, and to impede the ongoing investigations against himself and his inner circle. (Kavanaugh has said sitting presidents can’t be investigated.)
Collins unconvincingly tried to dance around Kavanaugh’s naked partisanship, too, by parsing his judicial record on the D.C. Circuit Court of Appeals, he position he was awarded as a reward for his loyal party services, and because he was expected to be a reliable supporter of GOP positions as a judge. Collins argued that as a judge Kavanaugh had supported ACA (aka Obamacare), and in her interviews with him, he had assured her that he would respect Roe v. Wade as precedent.
This, too, is disingenuous and cover for a vote based on party loyalty, not the merits of the case. Collins built her political support back home partly on a longstanding pro-choice position. She repeatedly said she wouldn’t vote for a Supreme Court nominee who would overturn Roe v. Wade. She claims Kavanaugh promised her that he wouldn’t do that. But let’s look at what his position actually is. Yes, there’s good evidence that as a judge he does abide by the doctrine of stare decisis and hold precedence above his own personal predilections. But he’s left himself an out, which Collins herself referred to in her floor speech: The notion that even well-established and longstanding Supreme Court precedents can be overturned if they originally were an “awful mistake,” pointing to Brown v. Education (which overruled Plessy v. Ferguson) as a historic example.
But that is precisely the argument that pro-lifers have used against Roe v. Wade ever since it was decided, that the decision was an awful mistake, and should be overturned. What assurance do we have that Kavanaugh, a pro-lifer, won’t use that rationale to overturn Roe v. Wade once he’s on the Court? Collins certainly can’t guarantee he won’t, but is prepared to confirm him anyway, despite her past claims that she would not vote for a Court nominee who poses a threat to Roe v. Wade. Is there any pro-choice woman in the United States who doesn’t think he’s such a threat? In any case, Kavanaugh could join the other conservative justices in eviscerating Roe v. Wade without actually overturning it, and then technically claim he didn’t break his promises. In voting for him, Collins is taking leave of her own pro-choice position, and abandoning the voters who supported her because she assured them she would protect abortion rights.
Flitting past Trump’s promises to appoint anti-Roe justices, Collins pointed out that past Supreme Court justices sometimes have surprised and disappointed the presidents who appointed them, which is true, but that’s a flimsy basis for putting her confidence in Kavanaugh. And should future events prove her wrong, she’ll be in the indefensible position of having ignored ample warnings.
As someone who’s asking for a lifetime appointment to the Supreme Court, Kavanaugh isn’t entitled to any benefit of doubt; the burden of proving fitness to serve should always be on the nominee. But even on that basis, he should be denied the benefit of doubt, because of who he is (his entire career after law school was spent as a GOP political operative), because of his clear partisan biases, and not least because of his fantastic partisan rant about a Clinton revenge conspiracy against him in his confirmation hearing confrontation with Dr. Ford. Even if nothing else is disqualifying, this shocking display of partisan animus and lack of judicial temperament should be.
At the end of the day, Sen. Collins’ defense of Kavanaugh is indefensible. What it boils down to is that America’s women victims don’t matter in the calculus of political power. One hopes Maine’s female voters will remember how she threw them under the bus when she seeks reelection in 2020. Meanwhile, you can help defeat her by contributing to the crowdfunding effort — which has already surpassed $3 million — to support her yet-to-be-named 2020 opponent here.
Meanwhile, whether America’s women matter is up to them. That depends on whether they vote, and who they vote for. With midterms now just a month away, and early voting already starting in some places, they’re facing a now-or-never opportunity to send a message to the GOP that the days of pushing women around and taking them for granted are over.