Justice Anthony Kennedy announced on Wednesday that he will be retiring from the bench, effective July 31.  President Trump is expected to nominate his successor by July 9.  The Senate Committee on the Judiciary will hold hearings on the nomination in the coming weeks.  Assuming the nomination moves out of the Committee, the full Senate will vote to decide whether to approve the nomination.  Among those voting will be the Republican Caucus’s most liberal member, the senior Senator from Maine, Susan Collins.

Senator Collins (R-Maine) stated on This Week with George Stephanopoulos on July 1, 2018, that the most important quality in a potential justice for the U.S. Supreme Court is respect for precedence.

I believe I am in good company in believing that the most important quality in a potential justice would be fidelity to the Constitution of the United States.  After all, the justice upon taking office would pledge an oath to God to support and defend the U.S. Constitution, NOT to support and defend prior rulings of the Court.

The issue for Senator Collins is not fidelity or respect for precedence; it is the abortion rulings from 1973 (Roe v. Wade) and 1992 (Planned Parenthood v. Casey).  She does not want these rulings, which guarantee a Constitutional right to an abortion, overturned.

It is fine for Senator Collins to have this opinion, but she ought not hide behind the legal doctrine of stare decisis (stand by matters decided).  The fact that abortion is not mentioned in the Constitution or that the legal reasoning behind both abortion decisions is legally shaky does not seem to matter to her.  As a member of the legislature, she does not seem troubled that the Court, in both cases, made law in violation of the separation of powers principle.

Had the Court come to opposite outcomes in 1973 and 1992, where not only does the Constitution not guarantee the right to an abortion, but stated that under the Fourteenth Amendment, an abortion would be the taking of a life without due process of law — thus making abortion unconstitutional — would the Senator be arguing for the respect for precedence?  I suspect not.

We should be careful about this issue of precedence.  It is true that stare decisis does promote stability in the law.  However, stability that does violence to the Constitution is not stability that should be respected.

In 1896, the Court issued its decision in Plessy v. Ferguson, which upheld the “constitutionality” of racial segregation and institutionalized the doctrine of separate but equal.  That decision was effectively overruled in 1954 – 58 years later — in the Brown v. Board of Education case.

As of this writing, Roe v. Wade is 45 years old.  Senator Collins believes that, given the longevity of this ruling, it should be considered “settled law” by any future Supreme Court.

Question: Does Senator Collins, using her own standard, believe that the Supreme Court was wrong to unanimously overturn the 58-year-old separate but equal doctrine in 1954?  I suspect not.

During her This Week interview, Senator Collins laid out the following as important qualities that a Supreme Court justice should have: judicial temperament, integrity, intellect, experience, qualifications, fidelity to the rule of law and the Constitution.  She also said, “most important of all” respect for precedent.  All the qualities she lists are important, but she is wrong that the respect for precedent should be the most important consideration.

When Senator Collins votes on the nominee, she ought to consider each of the traits she mentioned; however, the commitment to precedence should get diminished consideration.