Sen. Collins Remarks on Judge Brett Kavanaugh and Homosexual Marriage and Abortion Give Social Conservatives Pause

Republican Sen. Susan Collins of Maine is largely credited with helping save the nomination of Judge Brett Kavanaugh as Supreme Court Justice–with her reasoned speech Oct. 5 on the Senate floor in his defense. But what many conservatives papered over during the confirmation battle, especially after it turned very ugly with a serious of uncorroborated sex-assault claims against Kavanaugh, is Collins’ assertion that he can likely be counted on uphold both the Obergefell v. Hodges and Roe v. Wade rulings. Those decisions effectively imposed homosexuality-based “marriage” and abortion on all 50 states, respectively.

Below is the excerpt of Collins’ speech dealing with these two social and “culture war” issues. It should be remembered that three former SCOTUS Justices appointed by Republican presidents–Anthony Kennedy (appointed by Reagan), Sandra Day O’Connor (also appointed by Reagan) and Justice David Souter (appointed by George H. W. Bush)–often sided against social conservatives on abortion and homosexuality. We hope Justice Kavanaugh, who clerked for and effusively praised the retiring Kennedy (a hero to LGBTQ activists) will not follow in their footsteps. [The full text of Collins’ speech is HERE.] — Peter LaBarbera, AFTAH; Twitter; @PeterLaBarbera

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Sen. Susan Collins:

…Others I’ve met with have expressed concerns that Justice Kennedy’s retirement threatens the right of same-sex couples to marry. Yet, Judge Kavanaugh described the Obergefell decision, which legalized same-gender marriages, as an important landmark precedent. He also cited Justice Kennedy’s recent masterpiece cake shop opinion for the court’s majority stating that “the days of treating gay and lesbian Americans, or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court.”

Others have suggested that the judge holds extreme views on birth control. In one case Judge Kavanaugh incurred the disfavor of both sides of the political spectrum for seeking to ensure the availability of contraceptive services for women while minimizing the involvement of employers with religious objections. Although his critics frequently overlook this point, Judge Kavanaugh’s dissent rejected arguments that the government did not have a compelling interest in facilitating access to contraception. In fact, he wrote that the Supreme Court precedent strongly suggested that there was a compelling interest in facilitating access to birth control.

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.

The judge further explained that precedent provides stability, predictability, reliance and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court in Brown vs. The Board of Education overruled Plessy vs. Ferguson, correcting a “grievously wrong decision” to use the judge’s term, allowing racial inequality. But someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is grievously wrong or deeply inconsistent with the law. Those are Judge Kavanaugh’s phrases.

As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.

Noting that Roe v. Wade was decided 45 years ago and reaffirmed 19 years later in Planned Parenthood vs. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence. Our discussion then turned to the right of privacy on which the Supreme Court relied in Griswold vs. Connecticut, a case that struck down a law banning the use and sale of contraceptions. Griswold established the legal foundation that led to roe eight years later. In describing Griswold as settled law, Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920’s, Meyer and Pierce that are not seriously challenged by anyone today.

Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as a precedent. When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said “no.”

Opponents frequently cite then-candidate Donald Trump’s campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all presidential campaigns has included this pledge since at least 1980. During this time Republican presidents have appointed Justices O’Connor, Souter and Kennedy to the Supreme Court. These are the very three Republican president appointed justices who authored the Casey decision which reaffirmed Roe.

Furthermore, pro-choice groups vigorously oppose each of these justice’s nominations. Incredibly, they even circulated buttons with the slogan “Stop Souter or women will die.” Just two years later Justice Souter coauthored the Casey opinion reaffirming a woman’s right to choose. Suffice it to say, prominent advocacy organizations have been wrong.

These same interest groups have speculated that Judge Kavanaugh was selected to do the bidding of conservative ideologues despite his record of judicial Independence. I asked the judge point-blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, to any outside group on how he would decide cases. He unequivocally assured me that he had not….