The Daily - Susan Collins on Roe v. Wade and the Next Justice

Episode Date: July 2, 2018

When Justice Anthony M. Kennedy announced last week that he would retire this summer, attention immediately turned to the few senators who are willing to break from their parties on major issues — and who may hold the fate of the next Supreme Court nominee in their hands. We speak to one of them. Guest: Senator Susan Collins, Republican of Maine. For more information on today’s episode, visit nytimes.com/thedaily.Correction: An earlier version of this episode included a comment from Senator Susan Collins that misstated Americans’ views on the Supreme Court’s ruling in Roe v. Wade. While Americans are deeply divided on abortion rights, about 69 percent of adults oppose overturning the Supreme Court precedent; it is not “something like a 51-49” issue, as Ms. Collins said.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, when Justice Anthony Kennedy announced his retirement last week, attention immediately turned to the very small number of senators who remain willing to break from their parties on major issues. We speak to one of them. It's Monday, July 2. Some news just coming across right now

from the Supreme Court. After the final day of the term and a few hours after some of those final decisions, we have just learned that Justice Anthony Kennedy will be retiring. Anthony Kennedy's retirement will set in motion the biggest change in the U.S. Supreme Court in half a century. That's because Kennedy has often been

the most influential justice casting the deciding vote in closely divided cases. I think without any question, this is the biggest moment of the Trump presidency. We are going to be replacing a swing vote with someone who in all likelihood will be a conservative, a reliable conservative across the board. This just changes the entire fundamental dynamic of the United States Supreme Court potentially for a generation. You are going to see 20 states pass laws banning abortion outright, just banning abortion, because they know that there are now going to be five votes on the Supreme Court to overturn

Roe v. Wade. Roe v. Wade is doomed. It is gone because Donald Trump won the election. Senator Collins, can you tell me where you were and how you first learned the news of Justice Kennedy's resignation? Sure. I was attending a Republican lunch that's held every week. And toward the end of the lunch, Ted Cruz interrupted the discussion and said, Justice Kennedy has tendered his resignation. He had been looking at his phone, and the news alert had come over. So there were exclamations of surprise, and each of us whipped out our own cell phones to find out what was going

on and whether there were further details. I love this idea that all these senators are getting the news the same way that all the rest of us are. That's for sure. And funny that you should say that because I called my staff and I said, did you know this? And they said, the news is only nine seconds old. We didn't have time yet to alert you to it. Republican Senator Susan Collins spoke to us on Friday afternoon from her home in Maine. Well, so you might actually, and I'm sure this has dawned on you,

you might actually be central to who the president chooses for the court. Because, and this is the reason we wanted to talk to you today, you could find yourself becoming the key vote in all this. So did you understand right away that you would immediately be a central figure in this, that all eyes would turn to you? Not really. I knew that I was going to be faced with a lot of pressure, no matter whom was appointed, and that it was going to be another huge issue on my plate. But it was only when I returned from that lunch to my office and saw that my office was staked out with this mob, pardon the word, but of reporters and cameras that I thought, oh no, here we go again. And I actually joked and said, I assume that you're here to talk about a bill that I have

that I hope would help lower drug prices, prescription drug prices. And they all laughed and immediately turned to the Supreme Court. So the reporters, the mob, had figured it out before you. I must confess that that is true. I knew that this was going to be another huge issue, but it was only when I saw them all staked out at my office that I thought, oh my goodness, they believe that I'm going to be a pivotal vote that could determine the outcome. Even though in my mind, there are several pivotal votes. There are some moderate Democrats who supported, for example, Justice Gorsuch's nomination and my friend Lisa Murkowski. But it was daunting.

Well, so like it or not, I think in the public's mind, the reason that you are so the focus of all this attention and interest and reporters outside your office, and the same I'm sure is true of Senator Murkowski, is because you are both seen as willing to stand apart from your party, to be independent-minded. But also because you are both women Republicans. you are both women Republicans. And for many people, this open seat is about one case, Roe v. Wade. That's probably an accurate analysis. For the last, I think, five years, I have consistently been ranked as the most bipartisan member of the Senate. So clearly my record shows that I'm willing to cross the aisle, that I don't vote a straight party line, and that I look at issues based on their merits. issues based on their merits. As far as Roe is concerned, there's no doubt that there are many people who are very concerned about what this means for a number of cases, and Roe v. Wade is certainly one of them. I think there are also people who are trying to make this all about Roe v. Wade, even though the implications go far beyond that, since Justice Kennedy was considered

the decisive vote on so many important issues, and indeed wrote the landmark same-sex marriage case, for example. Right. But for both sides of this debate, we know that abortion can be, and probably will be, a key issue and a deeply emotional issue. Absolutely. Senator, what is your position on abortion? I am pro-choice. I consider Roe v. Wade to be settled law. And what does that mean to you?

It means that it is a precedent that should be respected. expected. Now, I do not apply a litmus test to the personal views of a judicial nominee, because I know personally that you can have a personal opinion on what you would do in a certain difficult situation that may well differ from your public policy view. So if a judge is pro-life personally, I respect that view. But I also want that judge to be able to put aside his or her personal views and apply what is the longstanding precedent. And Roe v. Wade is a longstanding precedent that has been reaffirmed by the Supreme Court. And here, Justice Kennedy played a key role in the Casey v. Planned Parenthood case. So, Senator, in thinking about a nominee

to replace Justice Kennedy, are you saying that the way that you're going to be thinking about this is whether or not a possible justice respects the concept of legal precedent and that you see Roe versus Wade as established legal precedent? Yes.

So you will be making your decision based on that rather than the personal view of the judge. Yes, but I don't mean to imply that that's the only issue that matters to me in evaluating a nominee. I want to look at the person's qualifications, experience, whether they have the proper judicial temperament. There are a lot of other criteria that go into my decision-making. I should also mention that obviously, if a nominee had demonstrated hostility toward Roe v. Wade in an official capacity, that that would cause me great concern. In other words, if they had shown skepticism of the decision in their actions and in their legal rulings, that might be sufficient for you

to vote against him or her. That's right. That's right. So is it accurate to say that you are pro choice, but you are not making your decision for the next Supreme Court justice based on whether or not they are pro choice, but that you very much do not want Roe v. Wade to be overturned, and that will be a significant part of your thinking in considering any nominee. That's accurate. But how can you be sure, Senator, that respect for precedent equals respect for Roe? The president has said that he thinks his appointments will result in Roe v. Wade being overturned. Well, I don't think the president's right about that. I think, for example,

that John Roberts, given his respect for precedent and his cautious approach, despite what personal views he may hold, I would be very surprised if the Chief Justice would ever vote to overturn Roe tell you, nor should they tell you, how they would rule on a specific case. And it's inappropriate for a member of Congress, a member of the Senate, to ask how a nominee would vote on a particular case. That compromises the ability of the judge to render an impartial decision based on the facts of the case that are presented to him or her later on. But you think the president is mistaken. You think this court, even with a conservative judge replacing Justice Kennedy, will not overturn Roe v. Wade? Well, I'm not saying that just any conservative judge

would reach the conclusion that I think is most likely. There are a couple of people who have been mentioned who have demonstrated hostility and an eagerness to overturn Roe v. Wade. So those individuals would not bring me the kinds of assurance that I would be seeking. My hope is that we will be presented with a nominee that has a certain amount of humility and recognizes that it is not appropriate for the Supreme Court to overturn such a landmark decision. Right. So I want to talk a little bit with you about how other people are going to be thinking about and talking about you in the coming weeks and talking to you about this process. I imagine that the pressure is going to be enormously intense on you,

starting with the president himself. And I understand that you met with him last night. Was it specifically about this? Yes. Lisa Murkowski and I were on the Senate floor and we were voting. And all of a sudden, she shows me an email message that she'd gotten from her scheduler saying that the president wanted to meet with her at 6.45 p.m. on Thursday. And I looked at my cell phone, and sure enough, there was a message from my scheduler saying that the president wanted to meet with me at 6.30 p.m. So Lisa and I talked and we decided that we should go together and meet with the president. And that's what we did. And it was just the two of you, you and Senator Murkowski? We were the only two senators, although I met other senators coming and going.

But sitting in on the meeting was the president's counsel and his head of legislative affairs. Can I imagine that because it was two of you, you got 30 minutes rather than 15? Correct. And what did you talk about, if I might ask? president. But I did encourage him to appoint someone who could attract some Democratic support so that we did not have a partisan vote. And I encouraged him to appoint someone who would respect precedent. I told him that that was very important to me. And what did he say in response to that? The president was taking in all that we were saying, and he listened intently. And I also encouraged him not to feel bound by the list of potential nominees that he has put out for the public to see.

So you encourage him to look beyond a list that is generally populated by very conservative, pro-life nominees? Well, I don't know that all of the nominees are pro-life. I do know that this list had a lot of input from the Federalist Society. And I believe that the president should get advice from a wide range of sources. And to be fair, also, the president, I will tell you, did say that if I had some suggestions to send them to his White House counsel. Hmm. And I assume you will. That's a correct assumption. It does suggest that, like it or not, your Republican colleagues and the president himself are thinking of you as the two senators they have to focus on. Do you think that there's particular pressure on you and Senator Murkowski, not just because you're independent, but because you are women? And I'm not saying that that's fair, but it may be a reality.

You know, I always want to push back when people characterize positions that I take as being tied to my gender. I'm concerned about a lot of different issues, and I would resist the notion that because I am a woman, there is an extra burden on me on this particular nominee. Hmm. Right. And I want to be very clear that I'm not saying any of this is fair or right, but there's inevitably going to be a narrative here, a tired narrative, admittedly, where as a woman senator, if you were to support a Supreme Court justice who helped overturn Roe v. Wade, that you would be betraying women. But as a Republican woman in power, you probably know better than almost anyone that there are many women who want to see Roe v. Wade overturned. I was just going to make that very point. How do you think about that? How do you think about that as somebody in your position? is still in this country a highly divisive issue. There are women who feel extremely strongly that Roe v. Wade was wrongly decided. And I would also point out, there are other Republican Republican women senators, and they have different views than Lisa and I do on the choice issue.

I just don't think you can generalize. In fact, we're in the minority. What do you mean? We're in the minority among the Republican women in Congress. In being pro-choice. In being pro-choice. So that's why this division by gender, I don't really understand. It is something that I think a lot of women in particular feel strongly about, but I know a lot of men who feel strongly about the issue also. And there are women on both sides of the issue. So despite being pro-choice, do you think, Senator, that it's problematic

that there's a narrative out there that women who are not pro-choice are somehow betraying other women? I think there is a narrative that women who are not pro-choice are betraying other women, and I don't think it's a fair narrative. I am pro-choice, but I respect those who don't agree with me. I think it's a very difficult and a very personal issue. and a very personal issue. That's one reason I'm pro-choice, is I think that it's an issue that should be left up to the individual woman and her family and physician. And I don't think government should be intervening except in extraordinary circumstances. But that doesn't mean that I don't respect the views of those who disagree vehemently with my pro-choice position. We'll be right back.

If I'm not mistaken, you broke from the party leader, Mitch McConnell, in blocking the nomination of Merrick Garland, which, of course, is arguably what led to Justice Kennedy's departure feeling like such a world-changing, significant moment. feeling like such a world-changing, significant moment. You're correct. I did not agree with the decision for the Senate not to consider Merrick Garland, especially since we weren't talking about a month before the election. I believe that Justice Scalia died in February, so it was many months before the election. I met with Judge Garland. I was impressed with him, and I felt that he deserved to go through the normal process. And I was disappointed that he didn't get that.

It's interesting, after the election, Judge Garland actually called me and thanked me for my courtesy toward him, which I thought was another indication of what a fine person that he is. So this speaks to your feeling that the judicial system is being compromised by this deep partisanship. Yes. It bothers me deeply that we speak of ideological blocs on the Supreme Court, that we talk about the liberal bloc, and we talk about the conservative bloc. And the New York Times has done an analysis on how often the liberal bloc votes together versus the conservative bloc's cohesion. And to me, that's not the approach that judges should be taking. They should put aside their ideological and personal views and apply the law and the Constitution to the facts of the case.

In fact, when I interviewed Judge Garland, I asked him, what is your judicial philosophy? And he gave me a response which delighted me. He said, I don't have a judicial philosophy. Which you welcomed because it meant he wouldn't fit into one of those blocks or the other. Correct. It's interesting, Senator, to hear you talk this way about the Supreme Court, because I think this is also how we think about the body you serve in right now, the Senate, that members vote in clear, reliable, ideological blocks. that members vote in clear, reliable ideological blocks.

And you are considered the rare exception to that these days. It's certainly true that in the years that I've been privileged to serve in the Senate, that it has become increasingly partisan. And I don't think that's a healthy development either. And I don't think that's a healthy development either. But I distinguish between the legislative branch and the judiciary or the executive branch and the judiciary. Everyone expects, even though it's gone to an extreme, for Congress to be partisan by its very nature. And the same with the executive branch. But to me, the judicial branch is supposed to be above raw partisan politics. nominees to the judiciary, as well as the increasing polarization we see in decisions coming out of the Supreme Court, are trends that seem to be getting worse. But do you think it's even remotely possible, given the current state of politics that you've

just described, that this Supreme Court nomination process will not be the most extreme political fight we've ever seen over who gets that Supreme Court slot? Well, hope springs eternal, but I am not optimistic that it will be other than a real battle. But I'm very troubled that my colleagues and friends on both sides of the aisle have already announced positions before there even is a nominee. That's extraordinary. Right. That's extraordinary. Right.

There's no clearer sign that this would be a political process and a political decision than the fact that people already seem to be putting themselves in camps. They're already lining up either in opposition or in strong support for a nominee who has not yet been chosen. That I have never seen before to this extent. You probably know this. You're being compared right now to the Supreme Court justice whose replacement you're going to have to approve or reject pretty soon, Anthony Kennedy. You're both seen as ideologically independent and capable of standing apart from your party. From where we sit, it certainly looks like you have a lot in common with Justice Kennedy

because he had so much power in being that swing vote. And because he didn't toe any particular line, do you feel you have some real power in what will happen in replacing Justice Kennedy? I am not seeking power. I'm seeking to make the best decision I can on a very consequential nominee. And I'm not the only one who is in this position. To me, that's what every senator should do in approaching this issue.

And I also believe that we need more people who are willing to not be an automatic vote for either the far left or the far right. Right. This is going to be very interesting because in not being that automatic vote here, you don't want to be the automatic vote, the partisan vote. You might end up accidentally creating a hugely partisan battle in the lead up to this nomination. I guess we're going to see. I hope that the president will send up a very good nominee, and we're just going to have to see what happens. You probably know this. Kennedy was either a villain or a hero in so many of these cases, because he was capable of being so decisive. Do you think that you'll be the hero or the villain

by the end of this confirmation process? I'm sure that I will be both. And I have been in that position many times. Senator, thank you very much for your time. We really appreciate it. Thank you. Bye-bye. In an interview with Fox News on Sunday, President Trump was asked about Roe v. Wade as a factor in his nomination. Are you going to ask your nominees beforehand how they might vote on Roe v. Wade?

Well, that's a big one, and probably not. They're all saying, don't do that, you don't do that, you shouldn't do that, but I'm putting conservative people on, and I'm very proud of Neil Gorsuch. He has been outstanding. His opinions are, you know, so well-written, so brilliant, and I'm going to try and do something like that,

but I don't think I'm going to be so specific in the questions I'll be answering. And I'm actually told that I shouldn't be. Here's what else you need to know today. you need to know today. In Mexico's closely watched presidential race on Sunday, Andrés Manuel López Obrador, a populist candidate who has railed against corruption and violence,

was elected in a landslide. Vamos a acabar con la corrupción. was elected in a landslide. López Obrador, who has promised to sell the presidential plane and convert the presidential palace into a public park, would be Mexico's first leftist president in more than 30 years. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.