Brett Kavanaugh Is Already Done Pretending He Respects Abortion Rights

Brett Kavanaugh Is Already Done Pretending He Respects Abortion Rights

Brett Kavanaugh Is Already Done Pretending He Respects Abortion Rights

And Susan Collins is to blame.


Lindsey Graham’s current Twitter profile picture is one of him standing next to Brett Kavanaugh. Graham—whose unhinged, screaming revenge fantasy marked a turning point in the Kavanaugh confirmation hearings—clearly wants to be known as the senator most responsible for putting an alleged attempted rapist on the Supreme Court.

But that dubious honor will always go to Susan Collins. Collins made a bigger show of her indecision than Hamlet. Her equivocations stole the spotlight from true undecided Republican women like Lisa Murkowski and Joni Ernst. Collins was never truly “in play” on the Kavanaugh vote, and she proved it by taking to the Senate floor and giving a fiery speech in defense of Kavanaugh’s record while ignoring the numerous and documented times Kavanaugh lied before Congress.

That speech will be remembered as one of the most willfully ignorant things ever to be said during a Supreme Court confirmation process. Brett Kavanaugh will repay Collins’s kindness by making her look like a fool every time he pens a decision for the rest of her natural life.

Collins said that Brett Kavanaugh would defend women’s rights because of his deep respect for Supreme Court precedent. Here’s that part of the speech:

There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me. To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself. He believes that precedent is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent. In other words, precedent isn’t a goal or an aspiration. It is a constitutional tenet that has to be followed except in the most extraordinary circumstances.

This was a lie. Brett Kavanaugh believed nothing of the sort. And Kavanaugh proved Collins was lying about him with a dissent he wrote last night.

Yesterday, the Supreme Court delayed a controversial anti-health law from taking effect in Louisiana. The law would have required abortion providers to get admitting privileges at a hospital within 30 miles of their women’s health clinic. If that law sounds familiar to you, it should. It is virtually the same law that was passed in Texas and struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt just two years ago.

The Texas law was struck down by a vote of 5-3 in 2016. Anthony Kennedy was in the majority. Merrick Garland was still waiting for the Senate to perform its constitutionally mandated duty of giving advice and consent. Brett Kavanaugh was probably somewhere rolling dice and getting aggressive. A lot has changed in the 30-odd months since Whole Women’s Health was decided.

But the whole point of “precedent” is that the law is not supposed to change wildly just because you swap out the names of the judges making the decisions. Lawyers call this legal principle stare decisis—which I believe means “did I stutter?” in the original Latin. Stare decisis instructs judges to apply previously decided law to new cases, unless circumstances are radically and irrevocably different.

The only reason this Louisiana law was even in front of the Supreme Court is because the notoriously regressive US Court of Appeals for the Fifth Circuit doesn’t care about precedent at all if it has a chance to stick it to abortion doctors. Emboldened by the elevation of Neil Gorsuch and Brett Kavanaugh, the fifth circuit is trying to overturn the Supreme Court’s decision in Whole Women’s Health, and they figure there are enough anti-abortion justices now that they can get away with it.

And they might. John Roberts sided with the liberals to stop the Louisiana restrictions from taking effect immediately, but he didn’t actually strike down the law. Essentially, Roberts is just saying that the fifth circuit can’t overturn Supreme Court precedent without the Supreme Court noticing. Roberts was in the minority in Whole Women’s Health, and once he has a chance to fully review the Louisiana case, he might be just as willing to ignore his own court’s precedent as all the other conservatives.

Any Republican appointed Supreme Court justice is going to be hostile to women’s health rights, but Brett Kavanaugh is a special breed. Not only did he vote against last night’s decision, he’s the only one who wrote a dissent about it. On Slate, Mark Joseph Stern said that Kavanaugh’s dissent “should not be taken as anything less than a declaration of war on Roe v. Wade.” Kavanaugh’s professed respect for precedent didn’t survive its first contact with reality. He respects precedent so little he’d have let Louisiana just straight ignore it.

Which brings us back to Susan Collins’s ridiculous defense of Justice Brett. Anybody honestly looking at Brett Kavanaugh’s history—from his time on the DC circuit to his time as a Republican political hatchet man to his time in high school—knew that his career was one giant assault on women’s rights.

Collins knew it too. Her defenders will argue that she’s a simple idiot, easily duped by a repeated liar, but that defense isn’t credible. Don’t let the quivery voice and performative conscience fool you; Collins knew exactly what Kavanaugh would be about on the Supreme Court. Her support of him was malicious, not naive.

Susan Collins wrote Brett Kavanaugh’s Supreme Court testimonial. He’ll write her political eulogy.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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