Lindsey Graham's Supreme Court
His outsized role in the confirmations of four justices
Senator Lindsey Graham’s recent death provides occasion to reflect on his remarkable impact on the Supreme Court.
When Graham joined the Senate in 2003, he became a junior member of the Senate Judiciary Committee. Over the next two decades, he took part in the confirmation hearings of eight of the nine current Supreme Court justices, including as the committee’s chairman for Amy Coney Barrett’s hearing in 2020. Graham voted to confirm seven of the eight—all but Ketanji Brown Jackson.
Graham had a striking impact on the Senate’s confirmation of four Supreme Court justices. In one case, he had to power his way past a large blunder. Without his contributions, the composition of the Court might well be very different.
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Graham made his mark on Samuel Alito’s confirmation in two large ways.
In May 2005—barely two years into his Senate tenure—Graham was one of the architects of the “Gang of 14 Agreement.” The bipartisan Agreement preempted the effort by Senate Republicans to abolish the filibuster for judicial nominations. Its seven Republican signatories agreed not to support the effort to abolish the filibuster. In exchange, its seven Democrats signatories committed to support cloture on three specific nominees who had been filibustered as well as on “future judicial nominations” in 2005 and 2006 that did not present “exceptional circumstances.”
As we have seen, on the heels of John Roberts’s confirmation as chief justice, George W. Bush very much wanted to nominate Fifth Circuit judge Priscilla Richman Owen to the seat being vacated by Justice Sandra Day O’Connor. If the filibuster had been abolished, the Republican majority in the Senate would very likely have confirmed her nomination, and Judge Alito would never have become Justice Alito. But with the filibuster still in place, Bush was warned (in his words) that the “the fight [over her nomination] would be bloody and ultimately she would not be confirmed.” So he passed over her, initially for Harriet Miers and then for Alito.
When Bush nominated Alito, the Gang of 14 Agreement meant that the White House could avoid a filibuster by persuading its Democratic signatories (or at least five of the seven) that the Alito nomination did not present “exceptional circumstances.” Meanwhile, the division among Senate Democrats that was manifested in the Gang of 14 Agreement meant that liberal senators who opposed Alito had to take a passive wait-and-see approach on whether to try to filibuster him. As a result, the momentum for a serious filibuster effort never developed.
Graham also triggered the most dramatic moment in Alito’s hearing. As I recount more fully here, Ted Kennedy and other Democrats were seizing on Alito’s brief membership in a conservative Princeton alumni group to brand him as a bigot. When Graham repudiated their allegations of bigotry, Alito’s wife Martha-Ann was so overcome with appreciation of Graham’s simple decency that she fled the hearing room in tears.
Republican staffers on the Judiciary Committee tell me that was the moment at which the tide shifted decisively in Alito’s favor. In the words of one staffer, “It’s hard to overstate what a turning point it felt like.” Democrats also saw the episode as critical:
“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems. “It got front-page attention. It was on every local news show.” [New York Times, 1/15/06]
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Lindsey Graham also helped pave the way for confirmation of Donald Trump’s nomination of Neil Gorsuch in 2017. He did so, first, by supporting Senate majority leader Mitch McConnell’s decision not to act on any nomination by Barack Obama to fill the vacancy that resulted from Antonin Scalia’s death in February 2016. Among other things, Graham and his fellow Committee Republicans signed a letter to McConnell on February 23 setting forth their commitment not to hold a hearing on any nominee.
If Obama had succeeded in filling the Scalia seat, Donald Trump would of course not have had the opportunity to nominate Gorsuch to that seat. Indeed, given the important role that the vacancy played in the presidential election and the tight margin, he probably would not have been elected.
When Senate Democrats tried to filibuster Gorsuch’s nomination in April 2017, Graham was influential in the successful Republican effort to abolish the remaining portion of the judicial filibuster—for Supreme Court nominees—that Senate Democratic leader Harry Reid had opportunistically left in place. Graham had special clout on this matter with undecided Republicans, both because he had prevented abolition of the judicial filibuster in 2005 and because he had voted for Barack Obama’s nominations of Sonia Sotomayor and Elena Kagan. As he put it:
Judge Gorsuch is qualified, competent and ready to serve. If he cannot get eight Democrats to vote for cloture (ending a filibuster) on his nomination, then I doubt any Republican nominee could.
I’m a traditionalist and I don’t want to change the rules of the Senate. But Judge Neil Gorsuch is going to be on the Supreme Court, and I’m prepared to do whatever it takes to put him there.
After Democrats defeated a cloture motion on Gorsuch’s nomination, Republicans abolished the filibuster for Supreme Court nominees. The Senate then invoked cloture and confirmed Gorsuch.
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If the filibuster for Supreme Court nominees had remained in effect, it’s highly doubtful that Trump would have nominated Brett Kavanaugh in July 2018, and it’s difficult to see how Kavanaugh would ever have been confirmed.
Graham’s greatest episode came during the second phase of Kavanaugh’s hearing, when he passionately decried “the most despicable thing I have seen in my time in politics”:
As my Ethics and Public Policy Center colleague (and former Graham staffer) Michael Fragoso sums up “Graham’s finest hour”:
[Graham] gave a speech for the ages. He called out the Democrats for their outrageous character assassination. He pointed out that Chuck Schumer had said he’d try to stop Kavanaugh from the word go. He told Kavanaugh to give his regards to Sotomayor and Kagan because he voted for them but those days were behind him. It was a speech that changed the tenor and course of the hearing, getting Republicans off the back foot and ready to fight the Democrats over their unconscionable behavior.
Another senior Senate staffer recalls:
By the end of Senator Graham’s speech, I was ready to run through a wall. And I had no doubt we were gonna win. This confirmation was my formative experience in politics, and Senator Graham’s speech was the most important moment.
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Let’s now turn to Graham’s surprising—and potentially very costly—blunder.
A defining feature of the 2016 battle over the Scalia vacancy was that President Obama and the Senate majority were from opposing political parties. It was likewise in this opposite-party context in a presidential-election year, way back in 1992, that Joe Biden, then chairman of the Senate Judiciary Committee, delivered a lengthy Senate floor statement in which he urged President Bush not to make a nomination if a Supreme Court vacancy arose, and he threatened not to hold a hearing on any nominee until after the election.
It was in this same context—anticipating a Supreme Court nomination by a president of one party to a Senate controlled by the other party—that Democratic senator Chuck Schumer publicly stated in July 2007 that the Senate “should not confirm another U.S. Supreme Court nominee under President [George W.] Bush ‘except in extraordinary circumstances.’” And, indeed, Kathryn Ruemmler, Obama’s White House counsel from 2011 to 2014, candidly acknowledged that if the political roles had been reversed—that is, a Republican president and a Democratic majority in the Senate—she would have recommended that Senate Democrats take exactly the course that Senate majority leader Mitch McConnell pursued.
It’s unimaginable that Biden in 1992 or Schumer in 2007 would have made their statements if a Democrat were president. It’s likewise unimaginable that Mitch McConnell would have committed to keep the Scalia vacancy open in 2016 if a Republican were president. None of them pretended otherwise.
Yet Graham somehow missed this fundamental point, and he did so very starkly. At a committee meeting in March 2016 (six days before Obama nominated Merrick Garland), Graham declared:
I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.
In October 2018, three days before the Senate confirmed Kavanaugh’s nomination, Graham repeated that promise:
If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.
In his evident desire to display fairness, Graham missed that genuine symmetry would mean merely that if Democrats controlled the Senate in the last year of a Republican president’s term, Graham would acknowledge that they had the constitutional power to refuse to act on a nomination to a vacancy that arose that year.
Graham became chairman of the Judiciary Committee in 2019. His position might well have made him more keenly aware of his institutional responsibilities to other Republican senators. In an interview in May 2020, he corrected course and stated that the Senate would act on a Supreme Court nomination if a vacancy arose:
Well, Merrick Garland was a different situation. You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different. I don’t want to speculate, but I think appointing judges is a high priority for me in 2020.
Justice Ruth Bader Ginsburg died on September 18, 2020. President Trump announced his nomination of Amy Coney Barrett on September 26. In the midst of the covid epidemic, Graham arranged for the Barrett hearing to begin 16 days later, on October 12. At the end of the hearing, Dianne Feinstein, the senior Democrat on the committee, thanked Graham for running “one of the best set of hearings that I’ve participated in.” On October 26, the Senate confirmed Barrett’s nomination by a vote of 52-48, with Susan Collins joining all Democrats in voting no.
If the filibuster for Supreme Court nominees had not been abolished, there is no way that the Senate would have been able to confirm anyone for Ginsburg’s seat unless that person had the support of at least seven Democratic senators.
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The current Supreme Court is very much part of Lindsey Graham’s legacy. May he rest in peace.