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Lindsey Graham stands apart from other Republican senators on Kagan vote

By Dana Milbank
Wednesday, July 21, 2010; A02

Lindsey Graham is all of 5-foot-7 with his shoes on, but these days he towers above his Senate Republican colleagues.

As the Judiciary Committee held its vote on Supreme Court nominee Elena Kagan on Tuesday afternoon, the seats on either side of Graham were empty. Sens. Jon Kyl (Ariz.) and John Cornyn (Tex.), along with Tom Coburn (Okla.), showed their contempt for President Obama and his nominee by skipping the vote -- just as they had done 51 weeks earlier for the vote on Sonia Sotomayor.

"Mr. Kyl?" the clerk called out.

"No by proxy," answered the ranking Republican, Jeff Sessions (Ala.).

"Mr. Cornyn?"

Behind the empty black armchair, a Cornyn aide made a thumbs-down gesture.

"No by proxy," Sessions said.

"Mr. Coburn?"

"No by proxy."

Alone in this empty quadrant of the committee table sat Graham. "Aye," the South Carolinian said, nodding with self-assurance.

Graham delivered his "yes" vote -- the only such vote by a Republican on the panel -- with a rebuke for both sides, particularly his fellow Republicans who have become so reflexive in their opposition to Obama that they are distorting their constitutional duties.

"I think there's a good reason for a conservative to vote yes, and that's provided in the Constitution itself," Graham told his peers before reading to them from Federalist No. 6, by Alexander Hamilton. "The Senate should have a special and strong reason for the denial of confirmation," he read, such as "to prevent the appointment of unfit characters from family connection, from personal attachment and from a view to popularity."

Graham said Kagan "has passed all those tests" envisioned by the Framers, then he challenged his colleagues: "Are we taking the language of the Constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard? That's for each senator to ask and answer themselves."

Cornyn (he was still in the room) studied his cuticles. Coburn stroked his chin. Sen. Orrin Hatch (R-Utah) raised a hand to cover a yawn.

Across the table, Dick Durbin (Ill.), the second-ranking Democrat in the Senate, took Graham's words to heart. "During the course of his statement," he said, "I reflected on some of the things that I have said and how I've voted in the past and thought that perhaps his statement suggested there was a better course for many of us to consider in the future."

The banality of the Senate confirmation process has become an old joke. Sen. Arlen Specter (D-Pa.) stopped by the press table as he entered the room. "You think you're going to hear one word that you haven't heard already?" he asked the reporters.

But Specter was wrong. Those who were there did hear something fresh: Graham's penetrating indictment of the tribal logic that has overtaken his colleagues.

First he read from a letter written by conservative legal scholar Miguel Estrada, a George W. Bush nominee blocked by Democrats in 2003, stating that Kagan should be "easily confirmable." He then read from a letter Kagan wrote recently containing similar praise for Estrada. "That gives me hope," Graham said, that people of different "legal philosophy and political interaction can at the end of the day say nice things about each other. . . . I think it would make a lot of Americans feel better if we could react that way ourselves a bit."

The once-idle reporters were tapping the keys of their laptops.

"Seventy-three of the 126 Supreme Court nominations," Graham continued, "were done without roll-call votes. Something's changing when it comes to the advice-and-consent clause. . . . The question I have for the body: Are we living in an age of legislative activism where the words haven't changed in the last 200 years, but certainly the voting patterns are?"

He reminded his colleagues that "no one spent more time trying to beat President Obama than I did, except maybe Senator McCain." But "President Obama won," he said, and "the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently or pick a fight with Ms. Kagan."

"Objectively speaking, things are changing, and they're unnerving to me," Graham's lecture continued. It is, he said, "our obligation to honor elections" -- an obligation that led him to vote "yes" for Kagan. "It would not have been someone I would have chosen," he said, "but the person who did choose, President Obama, I think chose wisely."

Less than an hour after the vote, pundits were assessing the political damage to Graham. The Post's Chris Cillizza judged that the vote for Kagan "ensures he will face a serious primary challenge in 2014."

Probably true. Luckily there are still a few lawmakers who believe there are bigger things than politics.

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