J. Scott Applewhite/AP Photo On The Bench Will Susan Collins Get Snookered Again? Here’s how Maine’s most gullible senator can flex her muscle on the Supreme Court — and prove her critics wrong.

Bill Scher is a contributing editor to Politico Magazine, and co-host of the Bloggingheads.tv show “The DMZ.”

Senator Susan Collins of Maine really wants you know that she’s not going to rubber stamp just anyone President Donald Trump nominates for the Supreme Court. In recent days she has embarked on a mini-media tour, telling viewers of CNN, ABC and listeners of the New York Times’ “The Daily” podcast that a nominee “who would overturn Roe v. Wade would not be acceptable to me.” Also disqualifying would be an “activist judge” who “demonstrated a disrespect for the vital principle of stare decisis,” meaning deference to past Supreme Court precedents.

Her problem? Nobody believes her.


Her hedge on CNN, that she wouldn’t support a nominee with “demonstrated hostility” to Roe, leaves the door wide open to a savvy anti-abortion conservative who didn’t put too much down on paper. Her assurances that Chief Justice John Roberts and Justice Neil Gorsuch met her criteria and would never scrap Roe sent thousands of eyeballs rolling to the heavens. Mother Jones’ Kevin Drum wondered aloud, “Is Susan Collins the most gullible person on the planet?” New York Times columnist David Leonhardt was less charitable: “She is willing to neglect substance and put the highest priority on appearing centrist.”

Surely, Collins doesn’t love the political vice she’s in, the increasingly lonely centrist representing a polarized yet blue-hued state forced to take sides in the never-ending culture war. “The judicial branch is supposed to be above raw partisan politics,” a wistful Collins said on “The Daily,” lamenting that many of her fellow senators are “already lining up, either in opposition or in strong support, for a nominee who has not yet been chosen.”

Yet with her media appearances, she is elevating herself as a voice for the dwindling centrist bloc. If that isn’t just for show, as Leonhardt and others believe, she’s going to have to prove it. Fortunately for Collins, in a Senate effectively divided 50-49, she can do exactly that: Prove that she wants Trump to pick a moderate justice, if she is willing to use her clout to make that happen.

Why is Collins’ centrist reputation so sullied among Democrats in the first place? Because during last December’s tax reform debate she cut a deal with Senate Majority Leader Mitch McConnell, trading away her opposition to repealing the Affordable Care Act’s individual mandate provision, in exchange for legislation that would financially stabilize the remaining health insurance program. But after Collins voted for the tax reform package, McConnell reneged and never brought the stabilization bill up for a vote. Collins blamed “hyperpartisanship,” not her own partisan loyalties and misplaced faith, for the failed deal. Pundits on the left called her as hopelessly naive, or worse — disingenuous.

In turn, Collins’ approval in Maine appears to have taken a hit in recent months. A Morning Consult poll taken in October 2017 gauged her level of support at 62 percent. By April of this year, after she admitted that the deal fell apart, her approval dropped 6 points. That, in and of itself, is survivable. But in the immortal words of George W. Bush, “Fool me once, shame on … shame on you … fool me — can’t get fooled again.” Susan Collins can’t get fooled again. If she votes for a justice who overturns or greatly weakens Roe before her next election in 2020, despite her assurances of respect for stare decisis, she will have to answer for that.

But Collins doesn’t have to get fooled again. This time, instead of trusting her fellow Republicans to do what she wants, she should make them.

What does she want? She explicitly isn’t asking for a nominee who crudely passes a litmus test on Roe. She is asking for a justice who puts a high premium on precedent and lacks an ideological agenda. On “The Daily” she even praised Merrick Garland, President Barack Obama’s final Supreme Court nominee who was denied consideration by McConnell. Collins recounted how when she met Garland and asked what was his judicial philosophy, she was “delighted” by his response: “I don’t have a judicial philosophy.”

Here’s how she can get what she wants: partner with red-state Democratic senators, and anyone else who’s willing, and jointly announce that they will not vote for any nominee who isn’t the result of bipartisan consultation, in advance.

Trump would have to scrap his vaunted judges list, which Collins has criticized as too heavily influenced by the conservative Federalist Society. Either he nominates a ninth justice who will hold the center, or it’s a 4-4 court until the president relents. If the showdown lingers, and the court remains 4-4 upon a Democrat claiming the Oval Office, the bipartisan demand would carry over to the next administration.

Red-state Democrats up for reelection this year, who are in just as much of a political pickle as the blue-state Collins, would readily jump at the chance to burnish their own bipartisan bona fides without angering their home state Democratic bases. Maybe even retiring Republicans like Senators Jeff Flake and Bob Corker, who have already pissed off Trump anyway, and pro-choice Republican Senator Lisa Murkowski, would come along for the ride.

Why might Collins actually do this? As she decried on “The Daily,” “the judicial branch is supposed to be above raw partisan politics … The increasing polarization we see in decisions coming out of the Supreme Court are trends that seem to be getting worse.”

If she doesn’t want the Senate confirmation process to be yet another example of “raw partisan politics,” then she should forcibly make it a bipartisan process. If she doesn’t want the court itself to become so polarized it loses all credibility in the eyes of the public, she has the power to craft a truly balanced court. If she doesn’t want a demoralized electorate to believe that Washington, and the nation itself, is hopelessly divided, this is her chance to strike an historic blow for consensus and compromise.

Ultimately, Collins — as well as anyone else in the Senate who publicly frets about the fabric of our democracy — has to ask herself whether she wants to be known as a champion for an impactful centrism that heals America’s wounds and restores faith in our institutions, or the epitome of a toothless centrism that gets steamrolled by ideologues over and over again.

Susan Collins holds more power to shape the Supreme Court than Donald Trump. She has to decide whether she wants to use it.

