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When Supreme Court Justice Stephen Breyer announced his retirement, it promised to be both a big deal and a done deal.
Openings on the court always matter, given the length appointees can serve and the role of the institution. While the number of Supreme Court members has changed over time, it’s always been a small body, with each person having an important role. President Joe Biden will also make history by nominating the first Black woman, something he promised during the campaign. Obviously, historically the court’s members have been overwhelmingly white and male.
But, whomever is seated, the 6-3 court will continue to be aggressive in backing right-wing policy agendas. It’s already taken away the reproductive rights of Texas women by not putting the state’s bounty law on hold. Although it may overrule Texas eventually, it could use a case about a Mississippi law to drastically curtail abortion rights. Either way, it’s not a court that’s protected women’s ability to choose as a federal right.
Given that Democrats hold the Senate (if barely) and the selection won’t change the court’s strongly Republican tilt, it’s exceedingly likely that Biden’s nominee will win confirmation. That likelihood also means that the pick would probably get some Republican votes, especially from senators who would get some political benefit from crossing party lines and looking moderate.
This court’s composition is the result of timing and hardball politics. Former President Jimmy Carter, like some presidents, didn’t have any openings during his single term. After winning two terms, President Barack Obama seated two Supreme Court justices. Republicans blocked Obama’s pick to fill Justice Antonin Scalia’s seat in February 2016, citing a made up rule that it was too close to a presidential election.
Former President Donald Trump, with one term, put three members on the court — Neil Gorsuch, for the position held open in 2016; Brett Kavanaugh to fill Anthony Kennedy’s retirement; and then Amy Coney Barrett, who was rushed through after Ruth Bader Ginsburg died just before the 2020 election. Trump could do all this because Mitch McConnell axed the filibuster for Supreme Court nominations, something worth remembering when we hear claims that the filibuster is sacred and has to be preserved when it comes to voting rights and other legislation.
In the Trump years, Sen. Susan Collins’ backing of Kavanaugh was controversial because of his positions, temperament, limited disclosure of his documents and allegations of sexual assault.
In addition, Collins voted for Trump judicial nominees with far-right records, some rated “unqualified” by the American Bar Association, to district and appeals courts after blocking some Obama nominees to the same sorts of posts. During his 2016 campaign, Trump promised his nominees would be “all picked by the Federalist Society,” which later held a fundraiser to support Collins.
And so it was particularly grating when Collins said Biden had “helped politicize the entire nomination process,” calling it “clumsy at best.” In particular, Collins avered she was bothered by Biden’s campaign promise. When asked by interviewer George Stephanopoulos “isn’t it exactly what [President Ronald] Reagan did when he said he would appoint a woman to the Supreme Court?,” Collins falsely claimed it was different because “what President Biden did was as a candidate.” As former Republican Party Chair Michael Steele pointed out on Twitter: “Susan, on Oct. 15, 1980, Ronald Reagan ‘as a candidate’ made the same pledge. ‘It is time for a woman to sit among our highest jurists,’ he said.” Steele then asked, “So let’s be clear: the only difference is Biden has pledged to nominate a black woman. Is that what has you so ‘concerned’?”
Indeed, after promising to do so during the 1980 campaign, then-President Ronald Reagan put the first woman on the Supreme Court. He picked Sandra Day O’Connor, who had state-level experience in the Arizona judiciary and Legislature.
Although Collins already voted against more of Biden’s executive and legislative nominees than she did against Trump’s during the first two years of his presidency, it wouldn’t be surprising if she votes for Biden’s eventual Supreme Court nominee. It’s been Collins’ norm to back presidential nominations for Supreme Court nominees (except for her vote against Barrett due to the short time before the 2020 presidential election, when Collins was also on the ballot).
But, rather than reacting to Biden’s historic move with celebration or a tentative take, Collins criticized Biden for doing what presidents before him have done while falsely claiming Biden was unique and looked like she was engaging in her own political posturing.