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Why Democrats might need Susan Collins’ vote to replace retiring Justice Stephen Breyer

Andrew Harnik
President Joe Biden listens as Supreme Court Associate Justice Stephen Breyer announces his retirement in the Roosevelt Room of the White House in Washington, Thursday, Jan. 27, 2022.

In this week’s Pulse: Collins opposes fast-tracked Supreme Court confirmation, unintended consequences possible in privacy bill, and Republicans court frustrated voters.

After weeks of bruising losses over voting rights and other progressive priorities, Democrats in Washington, D.C., and around the country seemed to be reenergized by the chance to fill a Supreme Court seat.

Democratic leaders are pledging to move fast once President Joe Biden selects his nominee, as Republicans did to get Justice Amy Coney Barrett seated before the Nov. 2020 election. But a rushed process could risk Democrats losing one of the only Republican votes up for grabs – U.S. Sen. Susan Collins of Maine.


Collins made clear the day that news broke of Justice Stephen Breyer’s impending retirement that she doesn’t want the confirmation process rushed.

“I felt that the timetable for the last nominee was too compressed,” Collins told reporters on Tuesday, referring to Barrett’s lightning-fast nomination and confirmation within just five weeks of Justice Ruth Bader Ginsburg’s death.

“This time there is no need for any rush,” Collins continued. “We can take our time, have hearings, go through the process, which is a very important one. It is a lifetime appointment, after all."

At the time, Collins said her opposition to Barrett had nothing to do with her qualifications. Her objections centered on the proximity to the 2020 election, as well as the precedent set in 2016 when then-Majority Leader Mitch McConnell blocked confirmation hearings for nominee Merrick Garland because the presidential election was later that year. Collins supported allowing Garland’s nomination to proceed to a Senate vote but said McConnell’s actions set a new precedent during Barrett’s nomination.

Ultimately, Republicans had enough votes to confirm Barrett without Collins’ vote. And Collins’ many critics accuse her of using that vote count as cover to vote “no” during a tough reelection battle in which her earlier support of Justice Brett Kavanaugh was a top issue.

Barrett is the only Supreme Court nominee that Collins has voted against out of the seven appointments by Republican and Democratic presidents during her Senate career.

Of course, this is not a presidential election year. But Democrats definitely want to fill the spot before November, when they could lose their razor-thin majority in the Senate.

With the Senate split 50-50, Democrats will need all 48 Democrats plus the two independents (Maine’s Sen. Angus King and Vermont’s Sen. Bernie Sanders) along with Vice President Kamala Harris’ tie-breaking vote if every Republican opposes the nominee. That means Biden will have to nominate someone who can win the support of the party’s two biggest sticking points in recent months: Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona.

"I can’t imagine that the administration won’t have consulted with people and come up with somebody who will have broad support among the caucus,” New Hampshire Sen. Jeanne Shaheen, a Democrat, told Politico this week.

But Democratic leaders are already making overtures to potential Republican votes, including Collins.

Senate Virus Outbreak
Greg Nash
Sen. Susan Collins, R-Maine, speaks during a Senate Health, Education, Labor, and Pensions Committee hearing to examine the federal response to COVID-19 and new emerging variants, Tuesday, Jan. 11, 2022 on Capitol Hill in Washington.

Collins said on Tuesday that the chairman of the Senate Judiciary Committee, Sen. Dick Durbin, contacted her to make sure she had heard the news “and to tell me that he will help to facilitate access to not only the nominee but to materials or anything I need to guide my decision-making.”

One of the people reportedly on Biden’s short list is Judge Ketanji Brown Jackson. Collins was among just three Republicans, alongside Alaska’s Lisa Murkowski and South Carolina’s Lindsay Graham, to vote for Jackson last year to fill a seat on the powerful U.S. Court of Appeals for the District of Columbia.

“Obviously it’s premature for me to speculate because I have no idea who President Biden will choose to nominate,” Collins said.

Well, that was awkward

Collins and Democratic Gov. Janet Mills managed to laugh off an awkward moment this week.

During the same event in Augusta where Collins had fielded questions about the Supreme Court, she was also asked who she would endorse in Maine’s 2022 gubernatorial race. Unbeknownst to the questioner, Collins has already endorsed former Republican Gov. Paul LePage in his race against Mills.

Collins and Mills were standing next to each other at the time the question was asked.

“Roll the tape,” Mills said with a laugh.

“I’ve already made an announcement on that. I don’t think we need to get into that here,” a smiling Collins said.

Privacy shield or 1st Amendment sword?

Many Americans are probably under the assumption that they have a right to privacy. After all, the Fourth Amendment guards against unreasonable searches and seizures by the government, while a hodgepodge of federal laws protect citizens’ health records, credit reports and limiting the government’s wiretapping of their phones.

There’s even a law that shields people’s Video Home System, or VHS, rentals or purchases.

There might not be many VHS cassettes rentals from Blockbuster these days, but there are plenty of digital renting options to accompany the multitude of digital services that collect, sort and often sell Americans’ buying or browsing preferences.

It’s the sale and use of that type of digital information motivating supporters of L.D. 1529, a bill that aims to enshrine a right to privacy in the Maine Constitution.

“Our personal and business information is being digitized through an ever-expanding number of computer networks in formats that allow data to be linked, transferred, shared and sold, usually without our knowledge or consent,” the ACLU of Maine’s Michael Kebede testified last year. “The same technological advances that have brought enormous benefits to humankind also make us more vulnerable than ever before (to) the unwanted snooping.”

Rep. Maggie O’Neil, D-Saco, the bill’s sponsor, made a similar argument, telling the Legislature’s Judiciary Committee in written testimony that the proposed amendment could protect Mainers “from the worst of the privacy abuses we have seen from big tech and social media.”

O’Neil’s bill might seem relatively straightforward — even popular, given the concerns about the sale and use of personal data — but the opposition it has drawn demonstrates that its effects are complicated. The Maine Press Association, The Maine Broadcasters Association (of which Maine Public is a member) and virtually any free press advocate organization you can think of is opposing the bill.

Judy Meyer, speaking on those groups’ behalf, submitted testimony this week saying that the language of the proposed amendment is so broad that “it could be used as a pretext to withhold information about government and public employees that citizens have the right to know.”

Meyer argued that the amendment should be changed to focus on preventing government intrusion, rather than just private. That’s because journalists and news organizations rely on people sharing personal information and communications in news gathering. They also use people’s social media posts and direct communications between private citizens and public officials. Meyer argued that bill language would ban access and use of that information by news organizations.

“LD 1529 puts all past and future reporting at risk if individuals can demand the removal of any story they find objectionable on privacy grounds,” she wrote.

The Christian Civic League also opposed the bill amid fears that it could hinder law enforcement’s ability to investigate human trafficking. The group, which opposes abortion, also worries that the languge protecting the “privacy of a natural person’s personal life” and “private affairs” tracks too closely with the language that, for the time being at least, protects a woman’s right to the procedure.

The Judiciary Committee held a work session on the bill Thursday, nine months after the public hearing (the Legislature did not act on the bill last session and carried it over to the current one). During that meeting some lawmakers on the panel expressed concerns about the proposal’s implications. Rep. Lois Galgay Reckitt, D-South Portland, suggested that bill might need a new public hearing altogether.

Thirteen other states have adopted constitutional rights to privacy, according to the National Conference of State Legislatures. But each of those enshrined rights contains significant differences.

Climate instruction

Maine environmental groups and young climate change activists are backing a bill that would give teachers a chance to beef up climate science instruction. But some education organizations are ambivalent, and at least one is worried that the proposal will pose equity concerns between rich and poor school districts.

The bill sponsored by Rep. Lydia Blue, D-York, creates a three-year pilot program that would allow school districts to apply for $3 million in grants and partner with nonprofits so that teachers can receive training in climate science education.

It's backed by environmental groups like the League of Conservation Voters and the Natural Resources Council of Maine. Those groups, along with youth climate activists, argued during a public hearing this week that teachers should receive training in how to better teach students the effects of climate change and how to fight it.

On the surface, the bill seems to dovetail with the Gov. Mills’ sweeping effort to make climate change a consideration in virtually all policy areas.

But even the Mills administration is not fully committed to the bill. The Maine Department of Education joined two education groups taking a neutral position on the proposal. DOE joined the Maine Principals Association in noting that the Mills administration already adopted in 2019 what’s known as the Next Generation of Science Standards, which includes climate change instruction.

DOE also noted the bill’s price tag, adding that the governor has not yet outlined her funding priorities in a widely anticipated proposal to change the state’s current two-year budget.

Meanwhile, the Maine Curriculum Leaders Association expressed concerns that some school districts that need to update their climate instruction might not have the capacity to write and oversee the grants outlined in the bill. The group worried that districts that do have that capacity might also be the ones that have invested in climate instruction, while the districts that haven’t would be effectively cutoff from accessing the development grants.

The Education and Culture Affairs Committee is expected to work on the bill over the next few weeks.

‘We are going to bring it, folks’

Senate Republicans held a rally this past week to kick off what they have dubbed “The Maine Comeback 2022.”

Maine voters will elect both a governor and 186 legislators this November. And it’s safe to say that Republicans are feeling optimistic, given the headwinds that Democrats appear to be facing at the national and state levels.

“We are seeing huge amounts of energy behind our efforts,” said Senate Minority Leader Jeff Timberlake, R-Turner, as he introduced several GOP candidates and was flanked by others. “We are hearing from Mainers all across the state of Maine who are ready for change. They are sick and tired of high gas prices, high energy costs, kids being forced to stay home from school.”

Timberlake then added: “We are ready to bring our message to the people of the state of Maine. We are going to bring it, folks.”

Neither the Maine Legislature nor the governor has much, if any, control over rising prices of gas, heating oil, propane and electricity, all of which are tied to international energy prices. Inflation, supply constraints and workforce issues are driving up grocery prices nationally. And decisions about whether students learn in-person or remotely is largely a local decision in Maine.

But frustration is a powerful motivator for voters, as we saw in 2010 in Maine.

Republicans funneled voter anger and frustration that year into their first “trifecta” in decades: a Republican (LePage) in the Blaine House plus majorities in the Maine House and Senate. It was part of a national Republican wave during the first midterms of Obama’s presidency.

Assistant Minority Leader Matthew Pouliot of Augusta seemed to be aiming somewhat lower when he said that “democracy functions best when we have divided government.” Democrats hold an 82-65 majority in the House and a 21-13 majority in the Senate.

“Right now, Democrats control both the legislative branch and the executive branch, and that divided government does not exist in Augusta,” Pouliot said. “When there is divided government, better conversations happen, there is more collaboration and better work gets done for the people of Maine.”

Of course, with LePage on the ballot again for governor, it’s doubtful that Republican legislative leaders would object to another GOP trifecta.

Lily Herrmann, executive director of the Maine Senate Democratic Campaign Committee, responded by pointing out that Democrats flipped the chamber in 2018 and then expanded that majority in 2020.

"Republicans can say whatever they want but while they are out there holding gimmicky press conferences, siding with pharmaceutical giants and health insurance companies, and fighting to undermine reproductive rights, Maine Senate Democrats are hard at work, delivering results," Herrmann said. "Whether it's delivering on property tax relief, health care reform, or good-paying jobs and the economy, working Maine families know that Senate Democrats will fight and deliver for them. And that's the reason for our success."

Unmasked enthusiasm

The roughly two dozen Republican candidates’ excitement and smiles were readily apparent at that Augusta “comeback” rally, because none of them were wearing face masks despite the current surge of the omicron variant of COVID-19.

In fact, there were only a handful of masks among the more than 50 people gathered in the conference room at the Senator Inn and Spa.

Masks or approved face coverings are required in most legislative spaces at the State House. Some Republicans have pushed back against such requirements from the beginning, however. And there is no such requirement for legislative activity occurring outside of the State House.

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