Sen. Susan Collins of Maine will not apply an ideological litmus test to the next Supreme Court nominee, her spokeswoman said Thursday.

Collins’ position, which is consistent with her past practice on high court nominees, means she won’t factor a nominee’s support for the landmark abortion-rights ruling of Roe v. Wade into her confirmation decision.

Reproductive rights advocates regard Collins as a critical piece of their last-ditch effort to prevent a potential rollback of the landmark 1973 ruling that prevents states from banning abortions and is now imperiled because one of its defenders, Justice Anthony Kennedy, announced Wednesday he is retiring from the court July 31. Because President Trump has pledged to nominate only justices who want to repeal Roe v. Wade, Collins’ position makes it more likely that a qualified Trump nominee would receive the 51 votes in the Republican-controlled Senate necessary to be confirmed to a lifetime appointment on the court.

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“When Senator Collins evaluates judges, she always looks at their judicial temperament; qualifications; experience; and respect for precedent, the rule of law, and the Constitution,” Collins spokeswoman Annie Clark said via email. “These are exactly the same criteria she applied when she evaluated President Bush’s Supreme Court nominees, President Obama’s nominees, and President Trump’s most recent nominee.”

“Senator Collins does not apply ideological litmus tests to nominees,” Clark said.

Abortion rights supporters have seen Collins – the most moderate member of the Republican Senate caucus – as crucial to their hopes of blocking a nominee who does not pledge to support Roe v. Wade, because the senator has been a champion of women’s reproductive rights. She played a critical role in preventing a Republican effort to withhold federal funding from Planned Parenthood in 2015 and has repeatedly voted against legislation to restrict abortions.

“Senator Collins has always made a commitment to uphold the right to legal abortion and I think she is aware as much as anyone of the acute consequences at this moment in time to criminalize it,” Ilyse Hogue, president of NARAL Pro-Choice America, told the Portland Press Herald during a conference call earlier Thursday. “We certainly think she will hear from our members … and she should take those words to heart, both from a political and from an ethical perspective.”

ABORTION-RIGHTS GROUPS REACT

Dawn Laguens, executive vice president of the Planned Parenthood Federation of America, said people should assume that everyone on the list of potential nominees that Trump has reportedly drawn up will be opposed to Roe v. Wade and, thus, should be a “nonstarter” with senators who support reproductive rights.

“We have had support in the past from Collins and (Alaska Republican Sen. Lisa) Murkowski in defending Planned Parenthood and protecting Roe v. Wade,” Laguens said in the conference call. “We believe that’s a really important piece of this puzzle along with a couple of other senators.”

Ezra Levin, co-founder of the protest group Indivisible, emphasized the importance of Collins and Murkowski to their strategy to protect abortion rights. “I want to be clear that a vote for any of the proposed nominees on Trump’s list is a vote to overturn Roe v. Wade,” he said in response to a question about their role. “Susan Collins cannot simultaneously say she supports Roe v. Wade and support anybody on that list; that would be quite hypocritical.”

Collins’ and Murkowski’s importance to the confirmation process isn’t lost on the White House. The two moderate Republicans were among a group of senators who met with the president to discuss the vacancy Thursday night, The Washington Post reported.

NOT LOOKING AT POLICY OUTCOMES

Maya Rupert, senior director for policy at the Center for Reproductive Rights, said she was hopeful that Collins would protect women’s health. “The fact that she has said she views Roe as established law, that makes us feel confident that she will do what she has done in the past, which is to continue to protect women and all people’s ability to access the health care they need,” she said.

However, Collins’ position – rooted in her stated commitment to process and consistency – appears to undercut that optimism because it excludes likely policy outcomes from consideration in confirming a nominee.

Clark said Collins “continues to believe that the president has the authority to put forth Supreme Court nominees, and that the Senate must fulfill its constitutional role by giving them consideration.”

“As part of her extensive interviews with Supreme Court nominees, Senator Collins always looks for judges who respect precedent,” Clark said. “She views Roe v. Wade as being settled law.”

Norman Ornstein, resident scholar at the American Enterprise Institute, said such an approach will likely have the effect of repealing Roe v. Wade, probably in stages. “You can sort of put your blinders on and say ‘I can’t be certain what this person is gong to do,’ but in reality you are beyond question casting a voice that could determine whether the right to choose disappears,” he told the Press Herald. “It’s going to have a very significant impact on her legacy.”

VALUING PRECEDENT – LIKE ROE RULING

Eliza Townsend, executive director of the Maine Women’s Lobby, hopes Collins takes a different course. “Our most basic rights are at stake, our civil rights are at stake, our identity as a country is at stake and I am hopeful that Senator Collins will choose this moment to stand up and be counted,” Townsend said.

Collins, who joined the Senate in 1997, has been consistent in this regard. She has voted to confirm all five Supreme Court nominees who have come before her, from liberal justices Sonia Sotomayor and Elena Kagan put forward by President Obama to conservatives Samuel Alito, John Roberts (both under George W. Bush) and Neil Gorsuch last year.

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In each case her questions and statements suggested a concern over whether the nominee would respect precedents set down by prior courts – the decisions they made, like Roe v. Wade.

She also has expressed concern about procedure, speaking out in favor of Obama nominee Merrick Garland receiving a Senate hearing in 2016. (Senate Majority Leader Mitch McConnell, R-Kentucky, refused, denying the Democratic president the ability to select a justice, with lasting consequences for the balance of the court.)

“Structurally in our system – and in her mind – the court nominees are supposed to be non-ideological choices basically separated from politics and above the public fray,” said political consultant Lance Dutson, a former Collins Senate and campaign staffer. “The question should be if the person is capable of doing the job. If you look from Alito to Sotomayor, she hasn’t applied ideological litmus tests to any of them.

“I know this particular issue is going to be something that people are very actively concerned about,” Dutson said. “But based on her previous actions, I think she will try to separate herself from the political fight as much as possible.”

Colin Woodard can be contacted at:

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