Sen. Susan Collins said today that she will “not support a [Supreme Court] nominee who demonstrated hostility to Roe v. Wade.” When Collins met with President Trump, she told him of this position. She also told him that some of the 25 names on his list of possible nominees are unacceptable to her. It’s not clear to me whether she identified them by name, but I assume she either did or will.
It’s unlikely that Trump’s Supreme Court nominee can be confirmed without Collins’ vote. There are only 51 Republican Senators and one of them, Sen. John McCain, is apparently incapacitated. If Collins defects, it’s likely that the nominee will top out at 49 GOP votes.
Will a Democrat make up the shortfall? I doubt it. If all Republican Senators are behind the nominee then, yes, a few Dems may join, as some did with Justice Gorsuch. But it’s hard for me to imagine any Democrat moving to the right of Susan Collins and voting for a Supreme Court nominee she rejects as having demonstrated hostility to Roe.
Thus, Trump really can’t nominate a potential replacements for Justice Kennedy who Collins says is unacceptable. At the same time, I don’t think he can nominate anyone who has demonstrated support for Roe. This would betray a large portion of his base and violate campaign promises.
What Trump needs to do, then, is nominate someone who hasn’t made his or her views on Roe known. And he should pre-clear the nominee with Collins.
The problem is that after the nomination is made, statements may be uncovered (or invented by acquaintances from the past) that demonstrate hostility to Roe or can be portrayed as such to Collins. There is also the matter of how hard Collins will push the nominee for assurances that he or she will not vote to overturn Roe.
In this regard, it’s somewhat encouraging that Collins believes neither Chief Justice Roberts nor Justice Gorsuch will vote to overturn Roe. This means that, in her estimation, the controversial decision will withstand a new conservative Justice, even if that Justice wants it reversed.
It seems to me that Collins is perhaps too optimistic (from her perspective) in the case of Gorsuch, at a minimum. However, her optimism may mean she will not exercise her “veto” over the next nominee too aggressively.
That Collins has a veto at all is unfortunate. Is it churlish to note that she would not have a veto had not some of Roe’s must vehement critics not caused the GOP to nominate Roy Moore and Todd Akin?