Maine and the Supreme Court Contest

8 mins read

Writing about President Trump’s Supreme Court nominee Brett Kavanaugh, Brookings Institute scholars Maya Sen and William Spaniel point out that “a like-minded Senate and president can benefit from keeping the nominee’s preferences opaque, as it makes it harder for the nominee to be exposed as sharing the president’s views?” Americans who assume that presidents choose nominees on the basis of their height, weight, shoe size and complexion will be surprised to learn that they think about the Constitution.

So what does D.J. Trump thinks about our supreme law? Any reader looking to me for an answer might as well look elsewhere. During the 2016 campaign he committed himself to the National Rifle Association’s interpretation of the Second Amendment, but only after the NRA corrected some of his earlier views. This brought him into line with every other GOP presidential candidate in recent memory. He also expressed disdain for Roe v. Wade, but nearly as I can determine this disdain only emerged when the decided to run for president as a Republican.

I’ve asked devoted Trumpophiliacs among my GOP associates when they first noticed Trump’s devotion to originalist or textualist constitutional interpretation. None of them had a date for me, although some seemed convinced that their savior had always been an originalist. All I’m willing to say with conviction is that he has relied on the Federalist Society for constitutional guidance since taking office. This pleases me and I believe that he has every reason to be satisfied with their advice.

The Sen-Spaniel assumption that it’s important to separate the nominee’s views from the nominator’s may reflect their legal training and experience. Anyone who has followed a trial or a good TV series about lawyers and courts knows that the first priority of a defense attorney is to suppress evidence.

Seriously. Think about it. Transparency is never the first priority. Opacity is preferred.

If you remember previous nomination fights, and have begun to track the one before us, you recognize that the nominee’s position resembles that of a criminal defendant. He is charged with intent to commit crimes against the “living constitution.” It follows that the defendant/nominee must seek shelter in evasion, indirection, obnubilation.

If any president ever knowingly nominated a Justice whose views militated against his own, I have not heard of him. Nevertheless a president has to know that the Justice he settles on the bench has no obligation to him. The Supreme Court Justice’s independence is guaranteed by two things. He has tenure until he assumes room temperature, and his salary may not be slashed. These protections apply during the nominating president’s life time and may continue for decades after his term, and life, have ended.

The defendant/nominee may avail himself of the cover afforded by the “Ginsburg Rule” invoked in 1993 by the chairman of the Senate Judiciary Committee during the Ruth Bader Ginsburg nomination hearings. That chairman, Joe Biden, explained “I do think it’s appropriate to point out that, judge, you not only have a right to choose what you will and not answer, but in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court.” Invocation of the Rule forces the nomination opponents to rely on the nominator, rather than the nominee, for evidence of his future performance.

Now let’s leave our discussion of principle behind and think about politics, starting with Governor LePage’s contribution. “I am confident that Senator Collins,” he announced on June 11, “as she has done with prior judicial nominations, will vote upon the President’s nominee based upon his qualifications and experience, not on partisan politics. I hope other senators do the same.”

Paul does not mention Independent-Angus. No need, the governor knows, as we all know, how our Angus will vote. I’ve found no Muddy Stream Media speculation about how Independent-Angus plans to vote either. They have already guessed. There will be a delay, because he’s skilled at playing “thoughtful.” He will, in due course, discover something “troubling.” His favorite liberal columnists will formulate some sophisticated pretext for voting NO. He will announce his decision. Senator Schumer will smile. The Democratic Caucus will applaud with constrained enthusiasm.

Our governor encourages Susan Collins to do the right thing, while implicitly reminding us that she did the right thing when she voted for Neil Gorsuch. He stresses qualifications and experience, as opposed to anticipations, prophecies and warnings.

In her first reaction Collins’s said she would “not support a nominee who demonstrated hostility to Roe v. Wade.” And when she met with President Trump earlier she told him of this position suggested that some of the 25 names on his list of possible nominees were unacceptable to her. This seemed compatible with demands from the Democrat and offered hope to the optimists among the Left-Lurchers, but the vigilant among them remember that she overcame her doubts about Gorsuch’s fidelity to R v. W. They don’t trust her.

Demand Justice, a nonprofit group formed by Democratic operatives to make judicial appointments a core electoral concern for progressive voters has made it clear that they don’t expect Collins to vote according to their wishes. A hashtag campaign, #HangersForCollins, has started up urging social media shock troops to send coat hangers to the senator. These are intended to remind her of the days before RvW, when squeamish people stayed away from alleys all over Maine in fear that they would see puddles of blood shed by girls aborted with coat hangers. I’m told by the Collins Bangor office that they now have fair collection of hangers, although the flow has diminished.

The Demand Justice crowd must be feeling discouraged when they read the senator’s most recent statement: “Certainly, when you look at the credentials that Judge Kavanaugh brings to the job, it will be very difficult for anyone to argue that he’s not qualified for the job,” Collins said. “He’s clearly qualified for the job, but there are other issues involving judicial temperament and his … judicial philosophy that also will play into my decision.” The nomination prosecution may find hope in this careful statement. I doubt their hope will be justified by events.

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