The future of Constitutional rights for women and all Americans rests in the hands of Sens. Susan Collins Susan Margaret CollinsThe Hill's Campaign Report: Trump faces backlash after not committing to peaceful transition of power Billionaire who donated to Trump in 2016 donates to Biden Credit union group to spend million on Senate, House races MORE (R-Maine) and Lisa Murkowski Lisa Ann MurkowskiOVERNIGHT ENERGY: House passes sweeping clean energy bill | Pebble Mine CEO resigns over secretly recorded comments about government officials | Corporations roll out climate goals amid growing pressure to deliver The Hill's Morning Report - Sponsored by Facebook - Trump previews SCOTUS nominee as 'totally brilliant' Abortion stirs GOP tensions in Supreme Court fight MORE (R-Alaska).

Two questions surround the vote of Collins and Murkowski on the nomination of Judge Brett Kavanaugh to serve on the Supreme Court. First, should they insist the vote be postponed until after the midterm elections, or until the National Archives provides all appropriate records about Kavanaugh to the Senate? Second, should they support the Kavanaugh nomination, or only support a nominee who is truly in the swing-vote mold of retired Justice Anthony Kennedy, which Kavanaugh is not?

Collins and Murkowski should not support any nominee until after the midterm elections and after the National Archives provides all records relevant to Kavanaugh requested by leaders of both parties.

ADVERTISEMENT

In March 2016 then-President Obama nominated Judge Merrick Garland Merrick Brian GarlandOn The Money: Anxious Democrats push for vote on COVID-19 aid | Pelosi, Mnuchin ready to restart talks | Weekly jobless claims increase | Senate treads close to shutdown deadline Senate to push funding bill vote up against shutdown deadline Poll: Trump opens up 6-point lead over Biden in Iowa MORE, who was widely praised by Republican senators, to serve on the court. Senate Republicans refused to consider Garland’s nomination, a Draconian abuse of Senate rules that left the court with only eight justices for more than a year until President Trump Donald John TrumpSteele Dossier sub-source was subject of FBI counterintelligence probe Pelosi slams Trump executive order on pre-existing conditions: It 'isn't worth the paper it's signed on' Trump 'no longer angry' at Romney because of Supreme Court stance MORE’s nominee Neil Gorsuch was confirmed in April 2017.



Now, Senate Republicans seek to force a confirmation vote before midterm elections that Democrats have a good chance of winning, and before the National Archives, which has shamefully refused to honor requests for records sought by Democratic leaders, even provides all information requested by Republican leaders.

The National Archives belong to the American people, not to Republicans. It should provide information sought by leaders of both parties before senators vote on the confirmation of a life-tenured justice. Collins and Murkowski can make this happen. Or not.

Regarding Roe v. Wade and countless critical issues, the question is not whether Kavanaugh claims he would respect judicial precedent. This means nothing in practice.

Kavanaugh’s nomination is part of an aggressive conservative legal war waged against the views not only of liberal Supreme Court justices, but against the views of retired Justice Anthony Kennedy, views which often made him the swing vote.

Kavanaugh’s nomination was offered by Trump, who is aggressively anti-choice and has a dismal record on civil rights, voting rights, human rights, equal justice and civil liberties.

Kavanaugh’s nomination was advanced by The Federalist Society, not because he would be a swing vote justice like Kennedy, but because he would not be. I consider The Federalist Society to be brilliantly skilled legal adversaries representing a hard-line conservative legal philosophy and an aggressive movement to make the court an enforcer of conservative causes.

Can Collins and Murkowski seriously believe that Trump and The Federalist Society would fight for a pro-choice nominee? Do they prefer to vote without being informed by hugely valuable information from the National Archives?

If Kavanaugh is confirmed, Collins and Murkowski would be joining a hard-line conservative legal movement that would escalate battles in states across the nation to enact regressive laws that would ultimately be decided by the Supreme Court, in some cases before the 2020 presidential election.

The conservative movement would escalate legal attacks against same-sex marriage, Planned Parenthood, voting rights for minorities, legal rights of immigrants, and Roe v. Wade and other hard-line conservative viewpoints. Which of these conservative crusades do Collins and Murkowski want to make the law of the land?

If confirmed, Kavanaugh would vote the way Trump and The Federalist Society expect. That is why he was nominated!

Kavanaugh would cast tie-breaking votes that create national outrage from the majority of voters, especially women, who disagree with hard-line conservatives. This backlash would plague Republicans in 2020 as the anti-Trump backlash plagues Republicans in 2018.

Kavanaugh would destroy Roe v. Wade without having to reverse it, by upholding so many attacks against choice that the decision would be effectively destroyed. Public views of the court would resemble public views of Trump.

Collins and Murkowski must choose between being courageous moderate Republicans, or joining Trump and hard-line conservatives who detest moderate Republicanism in the party of Lincoln. They cannot choose both.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives. He holds an LLM in international financial law from the London School of Economics.