Is SC’s Lindsey Graham playing politics with Supreme Court picks? Here’s his record
As Republican Sen. Lindsey Graham chairs the Amy Coney Barrett hearings, South Carolina’s senior senator finds himself in the midst of another Supreme Court confirmation battle — and facing questions about whether he’s letting politics drive his approach to filling vacancies on the nation’s highest court.
Since he was elected to the U.S. Senate in 2002, Graham has supported all the nominees who eventually were confirmed to the high court, despite the political contexts favoring different political parties, and he helped block one Obama nominee from ever getting a hearing.
He predictably voted to confirm Chief Justice John Roberts and Associate Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, all nominated by Republican presidents.
Most recently, Graham’s Democratic challenger Jaime Harrison has criticized Graham’s support of Republican efforts to completely block Obama’s 2016 nominee, Merrick Garland, from ever getting a confirmation hearing and has accused Graham of going back on his word that he would never support filling a Supreme Court vacancy in a presidential election year if the primaries have already started.
And earlier in his Senate career, Graham’s ‘yes’ votes to confirm Barack Obama appointees Associate Justices Elena Kagan and Sonia Sotomayor led to criticism in the Palmetto State among Republicans. Those votes were frequently noted by a slate of Republican challengers who opposed Graham’s 2014 reelection bid, arguing he wasn’t conservative enough.
Now two years after defending Kavanaugh during a contentious confirmation process, Graham is running Barrett’s confirmation hearings, at times defending her against Democratic attacks.
“When President Obama was president, I honored the fact that he won the election and I voted for two people I wouldn’t have chosen, and I’ve watched the Democratic Party try to destroy one conservative judge after another,” Graham said during a debate earlier this month with Democratic challenger Jaime Harrison.
Graham has said he voted for Kagan and Sotomayor based on their qualifications to serve on the Supreme Court; however, it led to criticism back in South Carolina.
“It was just really just harsh in the criticism he got here,” said Dave Woodard, a retired political science professor at Clemson and former Graham campaign manager.
Those votes weren’t the only times Graham worked across the aisle. Graham had been censured by some local Republican parties in the state for positions on immigration, climate change and the bank bailout.
The backlash against Graham, including over his support of two Obama Supreme Court nominees, inspired six primary challengers in 2014, including then-political newcomer Nancy Mace who is now a state representative running in the First Congressional District. Graham won the primary outright with 56% of the vote, avoiding a runoff.
Obama’s mainstream candidate blocked
Democrats’ criticism over Graham’s approach to Supreme Court nominees stems back to what happened in 2016.
When Justice Antonin Scalia died in February of 2016, Obama nominated Merrick Garland with almost eight months before the presidential election.
Graham met with Garland and praised him for his credentials. However, Graham and fellow Republicans, who controlled the Senate, refused to hold confirmation hearings, arguing the seat should remain vacant until after the presidential election, when the next president could nominate a justice.
Garland was widely regarded as a judge who could be palatable to senators on both sides of the aisle.
“He was about as close to center as any Democratic appointee judicial nominee,” said Derek W. Black, a USC law professor and chairman of constitutional law at the school.
But Republicans blocked Garland and later, after Trump was elected, Republicans ended the filibuster on Supreme Court justices in 2017 and confirmed Gorsuch as Scalia’s replacement. (In 2013 Democrats ended the filibuster for most presidential nominations for lower court positions and executive office appointments.)
Before Republicans removed the barrier, being forced to garner 60 votes for a nominee to move forward was a norm for Supreme Court appointees. It helped ensure justices were in the mainstream, Black said.
“(In) the confirmation process, the president gets to pick but there is supposed to be this sort of check on sort of extreme folks on the court, and we have seen a number of very contentious appointment processes as a result,” Black said.
The system was designed for presidents to appoint someone to uphold the Constitution rather than serve an ideological agenda, Black said.
“The argument now is that over the last few decades some presidents have changed their approach to that,” Black said. “They’re not just appointing sort of mainstream jurists, they are trying to change ... the way that the court interprets the Constitution just to fit their personal lens.”
Over the years, Republican presidents have appointed jurists they believe to be conservative, and Democratic presidents appoint judges who they believe to be more progressive or liberal.
“I think the question is how far away from center are those appointments?” Black said. “It’s not to say people are completely neutral in looking at that, but scholars have looked at it and said Republican presidents have increasingly appointed people who are further away from center than past Democratic appointments.”
It is important for the Senate to follow norms rules for who is appointed, Black said, adding he believes the appointment process has become too politicized.
“I’m disheartened because I believe the Supreme Court, whether you like it or not, is that one thing we as a country have looked to try to rise above the things going on in the world,” Black said. “What I see is the Supreme Court is being lowered to rest of us, and that does a disservice to our constitution and our democracy.”
Supreme Court spotlight helps Graham
Graham also has taken heat for promising to do the opposite of what he’s doing now in sprinting forward with Barrett’s confirmation.
In October 2018, shortly before Kavanaugh was confirmed in a 50-48 vote, Graham said during an interview “hold the tape” — if a vacancy occurred in the last year of Trump’s term, and primaries had started, the Senate would wait.
In August of this year, before Ginsburg’s death, Graham told reporters if a vacancy occurs, “We’ll see what the market will bear if that ever happens.” He said his view had changed over how Kavanaugh was treated during his contentious hearings.
Graham passionately stood up for Kavanaugh as the senior South Carolina senator said Democrats tried to ruin the eventual justice by bringing up days of drinking and a sexual misconduct allegation.
Now Graham is leading the push to confirm Barrett before the presidential election. Among his arguments is Supreme Court justices have been confirmed during a presidential election year, but when the same party controls the White House and the Senate.
The televised hearings, which he is chairing, put him in the national spotlight and help erase television advertising deficits he faces in his Senate race against Harrison.
Harrison has criticized Graham’s push to confirm Barrett saying he’s gone back on his previous word.
“Just be a man of it and stand up and say, ‘You know what? I changed my mind. I’m going to do something else,’” Harrison told Graham during a debate at Allen University. “But don’t go back and blame it on somebody else for a flip flop that you’re making yourself.”
Graham has used the spotlight to criticize his opponent and weigh in on the race.
During the hearings, Graham has questioned where contributions Harrison is receiving are coming from, saying South Carolina doesn’t want Obamacare because it has been “a disaster” for the state, among other things.
“We’re involved in a campaign in South Carolina, and my fate will be decided by the people of South Carolina,” Graham said during the Supreme Court confirmation hearing on Tuesday.
The setting, however, allows Graham to appear “senatorial,” Woodard said.
“I think that it he looks better as the chairman and is able to function as a kind and responsible senator, not somebody who’s been constantly maligned,” Woodard said.
However, Graham’s previous statements about waiting until after a presidential election have been brought up by political opponents before and during the hearings. The change in stances ultimately may not hurt Graham with voters, Woodard said.
“I think voters expect politicians to do that, and they have short memories,” Woodard said. “When it comes to voting they’re usually aware of things going on, and this whole hearing (for) Barrett is playing into Lindsey Graham’s wheelhouse.”
Moving forward with the confirmation to install someone who is perceived to be a conservative judge can help Graham in his re-election battle in the consistently conservative state.
A CBS News/You Gov poll found that 54% of South Carolinian voters supported moving forward with a nomination and confirmation before the election. A Morning Consult poll released Tuesday found that Graham’s lead over Harrison had widen to 6 points as confirmation hearings were set to begin.
“(Graham) has the best instincts of any politician I have ever seen,” Woodard said.
However, Democrats have criticized Republicans for rushing the weeks-long process ahead of the presidential election.
Barrett was formally nominated on Sept. 26. Graham hopes to have her approved out of committee by Oct. 22. A full vote on the Senate floor is expected the week of Oct. 26.
In previous appointments, the process would usually take several months, but some were quicker. Ginsburg was confirmed in 50 days, Sandra Day O’Connor was confirmed in 34 days.
Appointees usually meet with senators, a process that could take awhile to complete, Black said. Nominees also have to produce documents so senators can review their records in preparations for questions for the confirmation hearings.
The process is meant to be deliberative over an extended period of time, Black said.
“There has never been a Supreme Court justice appointed in such a rapid timeline,” Black said.
This story was originally published October 14, 2020 at 1:26 PM with the headline "Is SC’s Lindsey Graham playing politics with Supreme Court picks? Here’s his record."
