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GOP moderates sit down with Kavanaugh as they prepare for critical vote

Why We Wrote This

Confirming US Supreme Court justices is one of the Senate’s most consequential tasks. GOP Sens. Susan Collins and Lisa Murkowski are interviewing Judge Brett Kavanaugh this week while still plowing through paperwork – and not tipping their hands.

Alex Wroblewski/Reuters
US Supreme Court nominee Brett Kavanaugh meets with Sen. Susan Collins (R) of Maine on Capitol Hill in Washington Aug. 21.

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All senators are equal, but when it comes to the confirmation of Judge Brett Kavanaugh as the next US Supreme Court justice, those seen as swing votes are more powerful than their colleagues. Moderate Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska – who famously voted last summer to block the GOP effort to repeal the Affordable Care Act – are once again in the spotlight this week as they conduct private interviews with Judge Kavanaugh and attempt to learn more about where he stands on key issues such as abortion. President Trump made clear during the campaign that he would favor justices who would overturn Roe v. Wade, and Kavanaugh could cast the deciding vote in future abortion cases. Senator Murkowski, who studied his opinions over the August recess (she described him to the Monitor as a “good writer”), is preparing to meet with the judge on Thursday. Senator Collins, who conducted a two-hour interview with him earlier today, told reporters that Kavanaugh told her he shares Chief Justice John Roberts’s view that Roe is “settled law.” But as Murkowski points out, that does not necessarily mean it is the last word on that issue.

In recent weeks, Sen. Lisa Murkowski (R) of Alaska has felt like she’s back in law school – reading the opinions of Judge Brett Kavanaugh as she prepares for her interview with the US Supreme Court nominee on Thursday.

“I’ve done more with this nominee than I have with any of the others,” Senator Murkowski told the Monitor. “I’ve allowed myself good blocks of time to actually read and digest, rather than feeling rushed [like] I’ve got to spend an evening cramming for something.” 

She’s also been consulting widely with Alaskans about what questions to ask. It’s been a “vigorous” process – and an enjoyable one, she says, adding that “it helps that Kavanaugh is a good writer.”

All senators are equal, but in this closely divided Senate, those seen as swing votes are more powerful than their colleagues. This week, all eyes are on moderate Republicans Murkowski and her colleague Sen. Susan Collins of Maine – who famously voted last summer to block the GOP effort to repeal the Affordable Care Act (ACA) – as they conduct private interviews with Judge Kavanaugh and attempt to learn more about where he stands on key issues such as abortion.

President Trump made clear during the campaign that he would favor justices who would overturn Roe v. Wade, the 1974 landmark case that established a woman’s right to an abortion. Kavanaugh could be the deciding vote in future abortion cases, and Murkowski and Senator Collins, who favor abortion rights, are the only two known undecided Republican senators. If all Democrats vote against Kavanaugh – though that’s far from a given – and if Sen. John McCain (R) of Arizona remains absent as he has all year, a “nay” by either Murkowski or Collins could sink Kavanaugh.

So far, neither has found anything “disqualifying” about the nominee. But that does not mean they don’t have a lot of questions for him, or that they have made up their mind.

“I have always waited until after the Judiciary Committee hearings before rendering a final decision on a Supreme Court nominee,” Collins told reporters, emerging from her office after a meeting with Kavanaugh that lasted for more than two hours. “You never know what questions are going to come up.”

Collins, famous in the Senate for her deep dives into issues, says 15 attorneys from the independent Congressional Research Service have been briefing her for several hours every other day. So when Kavanaugh made his way to her corner office on Tuesday morning, she was prepared. They covered a “wide range of issues,” she said, from executive power to gun regulation, from healthcare to judicial philosophy and what judges he admires most.

And they talked “at great length” about precedent and the application of it to abortion cases.

“We talked about whether he considered Roe to be settled law,” Collins said. “He said he agreed with what Justice Roberts said at his nomination hearing, in which he said that it was settled law.”

But that is hardly the final word on this issue. Democrats point out that conservative justices cast aside what has been considered settled law on other issues – on unions, for instance.

Settled law “is not the important or decisive question,” Senate minority leader Charles Schumer (D) of New York told reporters after meeting with the judge Tuesday afternoon. Senator Schumer said he asked Kavanaugh whether he agreed that Roe and another key abortion ruling were “correctly decided.” The judge did not say yes. “That should send shivers down the spine of any American who believes in reproductive freedom,” Schumer said.

Democrats also point out that state attempts to further restrict abortion rights could work their way up to the Supreme Court, where Kavanaugh could cast one or more deciding votes that slowly erode those rights.

J. Scott Applewhite/AP
Sen. Lisa Murkowski (R) of Alaska speaks with reporters following a weekly GOP policy lunch on Capitol Hill in Washington, July 31, 2018. Senator Murkowski is viewed as a possible swing vote on confirming Supreme Court nominee Judge Brett Kavanaugh.

That’s something Murkwoski says she wants to question him about, specifically how he might interpret “undue burden.” In 1992, the Court ruled that states cannot enact laws that put an “undue burden” on women who are seeking to have an abortion.

Murkowski has many other questions – her own, and those gathered from groups such as the National Education Association, which wants her to ask about school vouchers. On Saturday, she was out with the public at a market, listening to their concerns. “Alaskans have been weighing in a lot. It is women’s reproductive health, it’s the ACA.” It’s also executive power and the reach of government agencies, which are important to Alaskans. “Privacy is a big one for us as well.”

In an exclusive interview with the Monitor in April, Collins lamented the “politicization” of the judicial nomination process.

“It really bothers me that we now have a quote liberal bloc on the Supreme Court, and a conservative bloc,” she said.

Collins probed Kavanaugh on his views on an independent judiciary, asking whether he made any “commitments or pledges” to the conservative Federalist Society or the White House about how he would decide any issues.

“He unequivocally assured me that he had not made any such commitments, and he expressed his deep respect for the independence of the judiciary,” she said in a statement after the interview.

The overall approving tone of the statement seems to support the idea that it would only be something as yet uncovered that might dissuade her from eventually supporting Kavanaugh. Indeed, Collins gives great deference to a president’s right to nominate justices. During her tenure in the Senate, she has never voted against a president’s nominee – be that president a Democrat or a Republican.

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