“This is an historic opportunity,” Graham said. “We’ve put over 200 federal judges on the bench. . . . So if you’re a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center.”
“Do it now,” he counseled. “I need some time.”
Graham fantasized about changing the judiciary “for several generations.” He also said that Republicans would fill any sudden opening on the Supreme Court this year, even though GOP senators blocked President Barack Obama from appointing Merrick Garland to the court in 2016 on the pretext that Supreme Court vacancies should not be filled in a presidential election year.
Graham’s open cynicism conflicts with what federal judging should be about — and the norms that the head of the judicial branch is fighting to defend. Supreme Court Chief Justice John Roberts rebuked President Trump in 2018 after the president suggested that an “Obama judge” was biased against him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Graham’s words indicate that, once again, he now agrees with Trump — that there are “Obama judges” and “Trump judges” and that the GOP project is to stack the judiciary with people inclined to concur. This is a view of the judiciary in which nominees’ ideological commitments matter more than their qualifications or temperament and in which the president and party that appointed a judge should reliably predict judicial rulings.
Graham’s view may strike some as merely honest about many judges’ underlying partisanship. Yet it is attitudes such as Graham’s that have steadily discouraged judicial professionalism over the past several decades. Now, he is worsening the problem by advancing obviously partisan nominees to powerful lifetime judgeships, and asking older judges to indulge their own partisanship to help him.
Graham once seemed to know better. He was among the “Gang of 14” that negotiated a bipartisan compromise on President George W. Bush’s judicial nominations. He voted to confirm Justices Elena Kagan and Sonia Sotomayor. But he stuck with Senate Republicans when they underhandedly blocked Garland in 2016 and has since become a chief architect of another large shift toward a fully politicized federal bench.
Indeed, one could previously expect more from Graham on a range of matters. For a time, he was said to be the Obama administration’s favorite GOP senator because he was willing to engage with Democrats on issues such as immigration and climate change. He often inserted himself into bipartisan negotiations that are increasingly rare in the Senate.
But following the death of John McCain in 2018, Graham ignored his old mentor’s parting advice on Trump’s toxic partisanship: “Help him where you can,” McCain said in one of their last conversations. “Just don’t get sucked into all this bull----.”
Graham got sucked in fast. Once a leading immigration moderate, he encouraged Trump to declare a fake “emergency” to build a border wall without congressional authorization. Once a critic of Trump conspiracy theories, he now seeks to use his committee’s powers to harass former Obama administration officials over the Russia investigation. Once a Russia hawk, he became one of the president’s most aggressive defenders during impeachment, which concerned Trump’s efforts to pressure the Ukrainian government to interfere in the 2020 election.
For many Republicans, the reward for selling their souls to Trump is a judiciary stocked with young, ideological conservatives. So it was perhaps most predictable of all that Graham would renounce his onetime levelheadedness on judicial confirmations, too, particularly now that he is in charge of the confirmation process.
It has been a sad decline for a man who once at least pretended he was a leader of independence and decency.