Sen. Susan Collins and House Speaker Sara Gideon have called for independent judges and decried Supreme Court politicization as a second nomination fight roils the end of their bitter campaign, but they are far apart in their evaluations of who should serve on the federal bench.
The Republican senator is facing her most competitive reelection race, narrowly trailing the Democratic challenger in polls. The judiciary is a big reason why, as Collins’ 2018 vote for Supreme Court Justice Brett Kavanaugh set off a wave of Democratic fundraising against her.
It has added up to a campaign that will exceed $100 million in spending, blowing away past Maine records. Both Collins and Gideon want the Senate to wait to confirm a judge after President Donald Trump picked Amy Coney Barrett and want a less political process. Neither have been specific in future steps they would take to make the court less political, however.
Collins broke with Trump and her party to oppose any Supreme Court nomination prior to the election after the death of Justice Ruth Bader Ginsburg in a decision she has said may anger some of her more conservative supporters. Gideon agrees, but she has largely made her electoral case around ousting Senate Majority Leader Mitch McConnell, R-Kentucky, who holds the key to nominations.
Collins has pointed to Democrats floating the idea of court-packing as evidence politicization of the judiciary has gone too far. Gideon and allies argue Collins has gone along with party leaders confirming conservative nominees who have made the court more political to begin with.
The controversies reflect the nature of a court that has become more politicized during Collins’ 24-year tenure in Washington. The first Supreme Court justice she voted for, Chief Justice John Roberts, won the support of 77 senators in 2005. Kavanuagh was approved with just 50.
Collins contends she has upheld the same standards for judicial nominees throughout her career, regularly voting to confirm qualified nominees from presidents of either party including all six Supreme Court justices that went to the Senate during her tenure — two under former President George W. Bush, two under former President Barack Obama and two under Trump.
She supported nearly 94 percent of judicial nominees appointed by Obama, according to records compiled by ProPublica. Under Trump, she has confirmed 94.7 percent, though opponents point out all of the judges she has voted against were appointed since the start of 2019, when the Senate Republican majority grew from two to six seats.
“What we need to do is make the confirmation process less political, more respectful and more insightful,” Collins said in a debate last week hosted by WAGM.
Her opponents argue that the president’s nominees have made the court more political, pointing to the decision by McConnell to block many of Obama’s late-term nominees to leave a slate of open seats when Trump took office in 2017. While Obama filled 334 judicial appointments during eight years, Trump filled 190 in his first three, according to congressional records.
Many of Trump’s nominees have engendered little bipartisan support. A handful were deemed unqualified by the American Bar Association, a professional group that has rated judges for more than three decades. Others, including Barrett, whom Collins voted to confirm to a lower court in 2017, have worried reproductive activists due to their stances on abortion.
A rare Republican who has expressed support for abortion rights, Collins said in 2018 that she would not vote to confirm a Supreme Court justice “hostile” to Roe vs. Wade, the landmark decision that legalized abortion nationwide. Barrett signed a 2006 newspaper ad from an anti-abortion group supporting “the right to life from fertilization to the end of natural life.”
Collins declined to say on Saturday what she thought of Barrett as a Supreme Court nominee, saying she has “not reached a decision on the merits” ahead of a confirmation hearing set for next week as the election approaches with Trump and two Republican senators on the committee that handles judicial nominees diagnosed with the coronavirus in the past week.
Though critical of Collins over voting to confirm many of Trump’s judicial nominees, Gideon has talked less about her own criteria. She has raised concern about a conservative-leaning court potentially repealing the Affordable Care Act after hearing a case on the issue in November.
Gideon says she would only vote to confirm judges who are qualified — a dig at Collins over her votes for some judges deemed unqualified by the American Bar Association — and who have the “right temperament” — a reference to Kavanaugh’s testimony during his confirmation hearing, where he at times banged his fists on the table after denying allegations that he sexually assaulted a woman while in high school.
The Democrat has also pointed to the issue of precedent, naming Barrett as an example of the kind of nominee she would oppose based on the judge’s criticism of the Affordable Care Act.
“What I will look for in a judicial nominee is that they don’t come intending to tear something down,” Gideon told reporters last week.
Still, she has been skeptical of proposals put forward by other Democrats to reform the court, including adding judges or instituting term limits, saying she thinks those changes would not solve the problem. Collins’ has argued that Gideon should take a stronger stand on the issue while challenging her to consider whether she would have supported Roberts in 2005.
One independent in the race, Lisa Savage, an independent and former Green running to Gideon’s left, has called for doubling the size of the Supreme Court and empaneling a subset of judges to hear each case, plus term limits of 18 years and other changes. The other, the Trump-backing Max Linn, has criticized Collins for not backing the president’s nominee this time, though he has also said he opposed Kavanaugh’s nomination.
BDN writer Michael Shepherd contributed to this report.