The Hill 11/26/2021
Sen. Lindsey Graham (R-S.C.) went viral during the Trump administration, and bolstered his conservative cred, with a fiery defense of then-Supreme Court nominee Brett Kavanaugh. But now, he is quietly emerging as one of the GOP's most frequent supporters of President Biden's judicial nominees.
The evolution is the latest turn for the South Carolina Republican and former Judiciary Committee chair — regarded by his critics as a political chameleon but one known for his relationships with Democrats and willingness to shift within his own party.
Graham’s support for Biden's court picks comes even as he remains deeply enmeshed with both former President Trump — touting his own judicial nominees — and faces a GOP base deeply antagonistic toward Biden and congressional Democrats.
“He believes presidents who win the election get to appoint judges, subject obviously to extreme cases, and I think he’s following through on it,” said Russell Wheeler, a fellow with the Brookings Institution who studies judicial confirmations.
Graham has touted his willingness to support a president’s judicial nominees even if he doesn’t agree with their philosophy, noting he was one of nine GOP senators who voted for Justice Sonia Sotomayor’s Supreme Court nomination in 2009 and one of five who supported Elena Kagan a year later.
“Senator Graham has long believed that under the Constitution the president has the right to select judges of their choosing and as long as they are qualified, they should generally be confirmed by the Senate,” Graham’s office said in a statement.
“This is the traditional and customary role of the Senate in the judicial confirmation process,” it added.
Graham’s support for Biden’s nominees on the Senate floor hasn’t been across the board. Earlier this month, he and every other GOP senator voted against moving Jennifer Sung’s nomination to the 9th Circuit to the floor, forcing Vice President Harris to break a tie to make the nomination available for a vote.
He also opposed the nominations of Myrna Perez and Beth Robinson, who were both selected to serve as U.S. circuit judges on the 2nd Circuit, during votes on the Senate floor.
But Graham’s support for Biden’s other judicial nominees makes him increasingly an outlier within the Senate GOP caucus, where only Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), two well-known moderates, vote for Biden’s judicial nominees on the Senate floor with roughly the same frequency.
Judiciary watchers say that has more to do with the growing partisanship around judicial nominations than any change by Graham.
Wheeler described Graham’s position as “the old fashioned view” that used to be more widespread in the Senate.
“The assumption always used to be that when our person is in the White House, we’ll expect the same deference from senators of the other party. That’s all out the window now. It’s now, you know, dog eat dog,” he said.
Asked about Graham's willingness to support judicial nominees, Thomas Jipping, a senior legal fellow at the Heritage Foundation, noted “that’s been his pattern probably as long as he’s been in the Senate.”
Jipping said that during the Obama administration, Graham voted against 5 percent of then-President Obama’s judicial nominees on average, compared to the GOP average of 12 percent.
After Graham, Murkowski and Collins, support within the GOP conference for Biden’s judicial nominees drops off steeply. Sen. Chuck Grassley (Iowa), the Judiciary Committee's ranking Republican, comes in a distant fourth place by supporting 12 of the 28 judicial nominees who have received roll call votes on the Senate floor so far this year.
Thirteen GOP senators haven't voted to confirm any of Biden’s judicial nominees on the floor, based on a Hill analysis of the roll call votes.
That’s a shift from how Republicans supported nominees during the Obama administration.
Only 18 percent of Obama’s circuit nominees and 9 percent of his district nominees got 30 or more “no” votes, according to data from Wheeler. President George W. Bush got 30 or more no votes on 18 percent of circuit picks and none of his district picks, while President Clinton got 30 or more no votes on none of his circuit picks and only 1 percent of district court judges.
Biden, so far, has gotten 30 or more no votes on 89 percent of his appeals and district judges, in what judicial watchers describe as a continuation of ramped up Democratic opposition to Trump’s judicial nominees.
“Most of the Republican conference is voting against most of Biden’s nominees,” Jipping said, noting that the Senate GOP conference was on average opposing nearly 80 percent of Biden’s picks.
In addition to being one of the most likely GOP votes for Biden’s picks on the Senate floor, Graham has emerged as the most reliable Republican vote in the evenly split Senate Judiciary Committee.
He was the only Republican on the panel to vote for Gustavo Gelpi’s nomination to be a judge on the First Circuit. He also broke with other GOP senators on the committee by being the only Republican to help advance Veronica Rossman’s 10th Circuit nomination, though he missed the full Senate vote, and Margaret Irene Strickland to be a district judge in New Mexico.
Because every other Republican voted against those nominees, Graham’s support allowed Democrats to avoid an 11-11 tie in the committee. Though tie votes aren’t fatal to a nomination, it forces Democrats to eat up more floor time before the nomination gets to a confirmation vote.
In other instances, Graham didn’t vote for the nominees in committee but also didn’t actively vote against them, including Lee’s Second Circuit nomination where he was recorded in committee record as “pass.”
He also was recorded as voting “present” on the district court nomination of Deborah Boardman, who was advanced out of the committee in a 11-10-1 vote. Graham, along with Murkowski and Collins, backed Boardman’s nomination in a final vote on the Senate floor.
“There have been a number of senators on the Republican side that have helped us move things along,” said Sen Dick Durbin (D-Ill.). “He’s one of them but others have helped too.”
But Graham's position puts him at odds with some of the Senate's biggest conservative firebrands, and potential 2024 candidates, who sit on the committee: GOP Sens. Josh Hawley (Mo.) and Tom Cotton (Ark.).
Hawley has voted for none of Biden’s nominees on the Senate floor, while Cotton has voted for two.
Graham’s support for Biden’s nominees hasn’t flown totally under the radar. Fox News host Tucker Carlson railed against it in a segment earlier this year, questioning “why are conservatives continuing to promote him and allowing him to continue to sit on the Judiciary Committee?”
Graham chaired the panel for part of the Trump administration, including overseeing Justice Amy Coney Barrett’s nomination hearing last year and helping shepherd Trump’s judicial nominees through the Senate.
Graham has maintained a close relationship with Trump since he left office, including golfing with him, trying to heal a deep rift between the former president and one-time ally GOP Leader Mitch McConnell (Ky.) and arguing that Trump is integral to the party’s future.
He’s also touted his role on the Judiciary Committee and Trump’s judicial picks since the former president left office, including at a Faith & Freedom Coalition conference earlier this year. Trump got a total of 234 judges confirmed, including three Supreme Court justices and 54 appeals court picks.
“I want to thank Donald Trump for nominating over 200 judges,” Graham said at the event.
“Do you understand what we did from 2016 to 2020 for this country?” he asked. “Do you understand how we changed the nature of the court for the next 30 to 40 years?”