Collins not the "deciding vote" on Kavanaugh confirmation

Gordon L. Weil

The biggest issue in the campaign against Sen. Susan Collins may be her vote to confirm Brett Kavanaugh to the U.S. Supreme Court.

An increasingly conservative Supreme Court could reverse the Roe v. Wade abortion decision. Opponents of the Kavanaugh appointment believe he would vote to overturn Roe, ending federal protection of a woman's right to choose.

Recently, the Bangor Daily News reprinted an earlier report about Collins' decision not to oppose Kavanaugh's confirmation. This second look reveals the importance of the issue in this year's Senate campaign.

"After Senator Collins cast the deciding vote to confirm Supreme Court Justice Kavanaugh, her vote has remained fixed in Vacationland’s collective consciousness," the Christian Science Monitor has reported.

NARAL, the leading pro-choice group, focused on "the definitive nature" of Collins' "deciding vote on Kavanaugh's confirmation."

Collins might have reasonably opposed the nominee as unsuitable for a seat on the Court, based on his undisciplined outburst at his confirmation hearing, but she approved him. She said she was reassured by his recognition that Roe v. Wade was "settled" law.

Pro-choice voters are gravely disappointed by Collins, who had a generally favorable record on abortion-related issues, for seeming to abandon her past views to support President Trump's conservative nominee.

But her opponents are not correct when they say Collins cast the deciding or decisive vote to confirm Kavanaugh. That may have been the chosen role of another senator. Here's the story.

Of the 100 senators, there were 51 Republicans, 47 Democrats and two independents who vote with the Democrats. One of the independents is Maine's Angus King.

Before Collins announced her position, 97 senators had announced their choice. The count was 49-48 in favor of confirmation.

GOP Sen. Lisa Murkowski of Alaska, having just decided, then announced she would vote against the nomination. At that point, the vote was 49-49 on the nomination.

Only Collins and Democratic Sen. Joe Manchin of West Virginia had not yet announced their votes.

After a lengthy explanation, Collins revealed she would vote to confirm. The vote stood at 50-49 in favor.

Minutes later, Manchin announced he, too, would vote for Kavanaugh, effectively canceling the effects of Murkowski's move. Kavanaugh was confirmed.

(In effect, the vote was 51-49 for confirmation. In fact, the final vote was 50-48. Murkowski withheld her vote as a courtesy to a fellow Republican favoring confirmation, who was unable to be present.)

If Collins had opposed Kavanaugh, the vote would have stood at 49-50 against. If Manchin had then joined her, the matter would have been settled at 49-51, and Manchin would have blocked Kavanaugh.

If Manchin had voted to confirm with Collins opposed, the vote would have been 50-50. Under the Constitution, Vice President Mike Pence would have broken the tie to confirm Kavanaugh.

To believe that Collins would cast the deciding vote, you have to believe that Manchin would follow her lead. He didn't. Even if Collins knew how he intended to vote, she could not have blocked confirmation; especially when he chose to vote last.

Manchin was facing a tough re-election in what has become one of the most Republican states. He was one of only three Democrats who had voted for Neil Gorsuch, Trump's earlier Supreme Court nominee and equally a concern on abortion, as had Collins.

If he had voted with the Democrats against Kavanaugh, he would have also assured the confirmation, by leaving it to Pence. The GOP would get its judge, but he would not have cast the decisive vote. His vote for confirmation produced the same result but got him more attention back home.

If there was a senator who cast the deciding vote on Kavanaugh, it was Joe Manchin.

Here's an historic parallel. In the 1868 Senate trial of President Andrew Johnson, the Republicans failed to convict him by a single vote. Seven Republicans voted to acquit. Any one of them might have been decisive, but the only one who history counts as decisive is the one who voted last.

Democrat Manchin's tactic paid off, and he was narrowly re-elected in his overwhelmingly GOP state. Collins remains vulnerable in Maine for her vote.

On March 4, the Supreme Court will hear a case about a Louisiana law that would effectively outlaw abortions in that state. If Kavanaugh hints at an anti-abortion position at that hearing or in the Court decision, expected by the end of June, he could damage Collins' credibility.

If the Court dodges the issue on technical grounds, it might seem to be avoiding it in an election year. If it firmly rejects the Louisiana law with Kavanaugh's vote, Collins could get a boost.

Although Collins did not, in fact, cast the decisive vote on Kavanaugh, he could cast a decisive vote affecting her.