Sen. Lindsey O. Graham (R-S.C.) looked briefly into the future and saw a calamitous confirmation process for Supreme Court justices and other federal judge nominees: a near total blockade.
“Is that the new norm? If that’s going to be the new norm,” Graham asked, “what do you do when one party has the Senate and the other party has the White House? How do you ever get anybody confirmed?”
Graham is nowhere near as relevant now as in previous years, when he oversaw Barrett’s confirmation as chairman of the Judiciary Committee and played a key role in turning the tide at Justice Brett M. Kavanaugh’s hearing in 2018 when he passionately defended the nominee and accused Democrats of “the most unethical sham since I’ve been in politics.”
But senior Republicans and Democrats agree with Graham that a judicial confirmation process that is already painfully partisan — as demonstrated by four long days of hearings over Judge Ketanji Brown Jackson’s nomination to the Supreme Court — could turn even more toxic.
Democrats recall the last two years of Barack Obama’s presidency when Sen. Mitch McConnell (R-Ky.), then majority leader, set up barricades around the top judiciary posts. Just two nominees to the circuit courts of appeal were confirmed in 2015 and 2016, the lowest two-year tally since the 19th century. When Justice Antonin Scalia died in February 2016, McConnell refused to even meet with Merrick Garland, Obama’s nominee, let alone give him a hearing or a vote.
Democrats are bracing for worse treatment next year if Republicans take charge.
“I can’t remember anything quite like it, with a Democratic president and a Senate in different hands. I don’t know where we’d go,” Sen. Richard J. Durbin (D-Ill.), chairman of the Judiciary Committee, said after Jackson’s hearings concluded Thursday.
Durbin said his focus is on “using every available” moment to keep confirming Biden’s nominees before the end of the year.
Sen. Charles E. Grassley (R-Iowa) would become the Judiciary Committee chairman and, in a brief interview, he declined to even consider how he would handle a Supreme Court vacancy.
“That would be like me hoping somebody’s going to die on the Supreme Court — I’m not gonna think that way,” said Grassley, 88, who used seniority to nudge Graham aside last year. “This is kind of a religious answer to your question, but there’s also a secular answer: Let go, let God, just take a day at a time.”
But Justice Clarence Thomas’s recent illness, an infection that resulted in a week-long stay at Sibley Hospital that was only supposed to last a couple of days, brought the issue squarely into the spotlight.
And Graham, the always loquacious lightning rod of the Senate, openly wondered and gamed out the potential scenarios.
Should a Supreme Court vacancy occur in 2024, Graham said, “the Garland rule” takes effect and Republicans will not contemplate processing a Biden nominee in the election year.
There is, in fact, no “rule” preventing the opposing party from processing a nominee in an election year. It’s something Republicans concocted to justify holding Scalia’s court seat vacant following his death in February 2016, allowing Trump to later nominate Neil M. Gorsuch. Republicans amended this “rule” in 2020 when Ruth Bader Ginsburg died fewer than two months before the presidential election, declaring that since the Senate and White House were of the same party they could rush through Barrett’s confirmation.
The tricky situation, Graham said, is if Thomas or another justice were to die in 2023, before the actual primaries and caucuses start in the presidential campaign.
“This is sort of uncharted territory,” he said.
It’s not, really. Senate Democrats approved John Paul Stevens as a justice in late 1975 and Anthony M. Kennedy in early 1988, confirming nominees of an opposing party’s president just before the campaign started.
But Graham views everything differently after the last two decades in the trenches of the judicial wars.
Over the first two days of Jackson’s hearings, he spent most of his time re-litigating past grievances about how Democrats had treated George W. Bush’s circuit court nominees when he was a first-term senator, citing poor treatment of conservative jurists who were minorities.
Most viewers were perplexed by his initial line of questions — “On a scale of 1 to 10, how faithful would you say you are?” — and whether Jackson could judge Catholics fairly. He admitted later those questions were out of bounds but said he was trying to make a point about how Democrats questioned Barrett’s Catholicism in her 2017 confirmation hearing to a circuit court seat.
“I’m trying to make a point. That I don’t believe there’s an ounce of religious bigotry in her. But if you’re offended by that, you should have really been offended by [what happened to] Amy Coney Barrett,” he said in an interview during a break Tuesday.
Whether his intentions were understood or not, Graham claimed he wanted to set a different tone for those hearings and for future nominees. In the interview, Graham said he wanted to end the circuslike atmosphere of the Kavanaugh hearings, capped off by an allegation of sexual assault while he was a teenager, which Kavanaugh has vigorously denied, and Graham’s over-the-top defense of the nominee that briefly made him a conservative hero.
“I had a starring role … and I am not looking for that,” Graham said. “I think if you want to get the best and brightest to sign up to be judges, we’re going to have to turn it down.”
Yet on the third day of Jackson’s hearings, Graham, 66, now in his fourth term, made no attempt to turn things down as he followed his more junior GOP colleagues into a legal gutter over her sentencing record on child pornography.
Graham said her sentences made “it easier for the children to be exploited.” In theatrical fashion, he interrupted the judge and shouted at Durbin when he tried to constrain Graham to his allotted time.
“All I can say is that your view on how to deter child pornography is not my view,” Graham said.
Democrats were left shaking their fists at someone who promised to treat the nominee with respect.
“Lindsey is a good friend and a complicated person. Complex person, that’s better, complex person, and I’m doing my best to still find an avenue where we can work together,” Durbin said Thursday.
On Thursday, Graham doubled down, declaring he still treated Jackson better than Democrats treated Kavanaugh. “Has anybody accused her of misconduct here? All we tried to do is prove that her record is one of judicial activism,” Graham told conservative radio host Hugh Hewitt.
For his first 15 years in the Senate, Graham often played the role of junior partner to John McCain, the maverick Arizona Republican senator who died in August 2018. In the last couple of years of Trump’s term, Graham fell in line as golfing pal to a president who often publicly maligned McCain even after his death.
Last weekend, on the eve of Jackson’s hearings, Graham wasn’t completely engrossed in her legal briefing books. He flew to West Palm Beach for some political fundraising work, crossed the bridge into Palm Beach for dinner with Trump at Mar-a-Lago on Friday and Saturday, then played golf Sunday with Greg Norman, the Australian ex-PGA Tour star who is trying to start a rival golf league backed by Saudi investors.
With McCain gone and Trump in the political wilderness, the career wingman now needs to chart his own path.
If Republicans win in November, Grassley, 88, will wield the gavel for Judiciary and Graham will be chairman of the Budget Committee.
Never much of his focus, Graham said he would use the Budget Committee gavel to pull together some members of an independent commission that studied the national debt early last decade.
“Tell me again what you were trying to do,” Graham said he would ask, hoping to create a “blueprint” to curb the $30 trillion national debt.
If Graham had his druthers, Biden would have nominated Judge J. Michelle Childs of South Carolina instead of Jackson. He pledged to vote for Childs’s promotion to the U.S. Court of Appeals for the District of Columbia Circuit, set to be taken up later this spring.
But will he support Childs for the Supreme Court next year if there’s a vacancy and Republicans are in charge? Maybe, but he thinks he would use that as leverage to start a broader negotiation on how to treat all nominees when the Senate and president are at political odds.
“Okay, I may vote for Judge Childs,” he said in an imaginary conversation. “What are you going to do to our people? I want a rule that applies to all of us.”