Until this month, only two sitting Republican senators have voted for every Democratic Supreme Court nomination that has reached the floor: Susan Collins of Maine and Lindsey Graham of South Carolina. Now that number has dwindled to one. Collins supported Ketanji Brown Jackson, and Graham voted against her.
In 2009, when Graham voted to confirm President Barack Obama’s first Supreme Court nominee, Sonia Sotomayor, he explained, “I do believe that elections have consequences, and it’s not like we hid from the American people during the campaign that the Supreme Court nomination was at stake. The American people spoke.” Now Graham has gone to great lengths to explain why that principle is no longer operative. His reasoning can best be described as follows: Now that Democrats are being mean to Republican judicial nominees, I will no longer be nice.
Graham began his questioning of soon-to-be Justice Jackson with a Festivus-style Airing of Grievances. “How would you feel if the senator up here said … ‘The dogma lives loudly within you and that’s of concern?’” said Graham, recalling Senator Dianne Feinstein’s controversial questioning of then Circuit Court nominee Amy Coney Barrett. “Do you realize that she was filibustered for two years when she was appointed to the D.C. Circuit?” Graham said, referring to the conservative African American judge and George W. Bush appointee Janice Rogers Brown. “They made a big deal about some group he was in that had views that he didn’t agree with and tried to call him basically a racist,” Graham vented about Democratic questioning of Samuel Alito back in 2005.
Perhaps recognizing the weirdness of his line of questioning, Graham wrapped up his initial turn by saying, “I guess the reason I’m bringing all this up is it gives me a chance to remind this committee and America there are two standards going on here … This stuff needs to stop. Our people deserve better respect and I hope when this is over, people will say you were at least well treated even if we don’t agree with you.”
Graham’s coda allowed the possibility that he would take the high road and vote to confirm Jackson. But for the remainder of the hearings, Graham smeared her as soft on sentencing child sex abusers and tagged her as a radical leftist. And then the former military lawyer claimed the smear campaign was, somehow, proof that Republicans did take the high road. It was no surprise when he announced that he’d oppose her nomination. (In the end, only three Republican senators voted to confirm Jackson: Collins, Lisa Murkowski of Alaska, and Mitt Romney of Utah.)
Implicitly responding to a Washington Post editorial charging that Jackson was “treated worse” than Supreme Court Justice Brett Kavanaugh, Graham waxed indignant on the Senate floor:
To the liberal media, comparing this hearing to Judge Kavanaugh is an absolute offense. Nobody on the Republican side held information back accusing Judge, Justice [sic] Brown of doing something that was either made up, not credible … Nobody took a bunch of garbage and made it seem like that the nominee had been Bill Cosby in his teenage years. Crazy stuff. Offensive stuff.
What we did ask Judge Jackson is: Why do you sentence the people the way you do, explain the reasoning in the cases involving child pornography, and we went after her judicial philosophy.
… To me, if you’re going to be nominated to the Supreme Court for a lifetime appointment you should expect to be asked hard questions. You should not expect to have your life destroyed. And if you don’t see a difference between the two hearings, then you’re blinded by your desire to get an outcome.
Graham’s monologue summed up the prevailing Republican view that in the battle for the judiciary, craven Democrats destroy lives with personal attacks while Republicans battle honorably by sticking to the nominee’s record.
That narrative ignores that it is possible to destroy someone’s life by smearing their record, such as falsely accusing someone of being soft on child porn traffickers.
Further, there are other ways to be indecent toward judicial nominees beyond savaging their work. Ask Merrick Garland. In 2016, when he was a Supreme Court nominee, he wasn’t asked any “hard questions,” as Graham suggested. Garland wasn’t asked any questions at all, because Senate Republicans refused to give him a hearing to fill the seat of Justice Antonin Scalia.
By focusing on an allegation of attempted sexual assault when a teenage Kavanaugh was supposedly drunk at a party, Democrats might have looked like political dumpster divers. But after the powerful testimony of Kavanaugh’s accuser Christine Blasey Ford and Kavanaugh’s petulant defense—which included asking a U.S. senator (and daughter of an alcoholic) if she was drunk—polls showed that more Americans believed Ford than Kavanaugh, and most opposed his confirmation. Moreover, what outraged Republicans overlook is that when Democrats focus on sexual misconduct charges during a judicial nomination process—as they did with Kavanaugh in 2018 and, back in 1991, with Clarence Thomas—they aren’t pursuing a strategy designed to steal a seat away from the president’s party.
Even if Democrats had been able to sink Kavanaugh’s nomination—despite not holding the Senate majority and no longer having the filibuster option—they wouldn’t have been able to fill the vacant seat themselves. What Democrats would have won is a stricter standard regarding past sexual misconduct. Donald Trump and the Senate Republican majority still would have been able to nominate and likely confirm a judge of their choosing, probably one more conservative than Kavanaugh, who does tack toward the middle occasionally.
In years past, Democrats have fought to deny confirmation to Republican nominees based on their judicial philosophy. The most famous example was the defeat of Ronald Reagan’s 1987 Supreme Court nominee Robert Bork. Republicans have long wailed about how Bork was treated, but Bork was asked hard questions about his “judicial philosophy.” The D.C. Circuit judge defended his opposition to the Court’s Griswold v. Connecticut ruling, which struck down a state law banning contraceptive sales to married couples and expanded privacy rights that undergird Roe v. Wade, and his cramped view of a First Amendment that only protects speech with a connection to politics. Bork was not filibustered but defeated, with six Republicans joining 52 Democrats in voting no. Reagan still got to fill the vacancy. After one more failed attempt, he chose a more mainstream conservative, Anthony Kennedy, who was easily confirmed. Republicans have long charged that Democrats lampooned Bork’s views, but they were, at least, considering them in a way that comported with reality.
Democrats also fought several of President George W. Bush’s lower court nominees mainly on ideological grounds. Ten nominees were successfully filibustered in Bush’s first term.
Republicans were particularly aggrieved over the Democratic filibuster of Miguel Estrada for an appellate seat. They accused Democrats of stymying a conservative on track to be the first Latino justice. (After Estrada withdrew his nomination. Republican Senate aides stole memos from Democratic Senate aides that described Estrada as “especially dangerous because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”) Democrats never copped to the charge; they justified the filibuster because Estrada evaded questions about abortion and affirmative action and because the Bush White House wouldn’t release documents from his tenure as assistant solicitor general.
Early in Bush’s second term, five nominees were blocked, including Graham’s favorite, Rogers Brown. (As then Senator Barack Obama said at the time, while arguing against her confirmation to an appellate seat, Rogers Brown “wrote that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is still protected by the First Amendment.”) Republicans became so frustrated that they threatened to deploy the “nuclear option” and abolish the filibuster for judicial nominations. But a bipartisan “Gang of 14”—of which Graham was a member—struck a deal in which three of the controversial nominees (including Rogers Brown) would not be filibustered, future nominees would only be filibustered in “extraordinary circumstances,” and judicial philosophy would not be considered such a circumstance.
Democrats kept a handful of far-right judges off the bench, but they didn’t strip Bush of his ability to shape the judiciary. Bush won confirmation of two Supreme Court nominees, Samuel Alito and John Roberts. (Granted, Bush didn’t get one of his picks confirmed, Harriet Miers, his White House counsel, but that was because of virulent opposition from Republicans, not Democrats. Like Democrats did with Estrada, conservatives demanded a release of documents from Miers’s time in the White House, which Bush was unwilling to provide.)
Notably, Bush left office with 54 lower court vacancies, 27 fewer than when he began. That was not true for Obama, who, after years of battles with stingy Republicans, handed his successor 105 vacancies. Including that one Supreme Court vacancy I mentioned above.
In 2013, Republicans refused to consider three Obama nominees for vacancies on the D.C. Circuit Court, considered the most powerful federal court aside from the Supreme Court. Top Republican senators, including Mitch McConnell and Chuck Grassley, made the gaslit argument that filling vacancies amounted to court-packing. If that didn’t drive Democrats crazy, Grassley authored legislation akin to court-packing, but instead of expanding the number of seats so one party could fill them, he wanted to reduce the number of seats so one party couldn’t fill them. Unwilling to concede their confirmation power, Senate Democrats went nuclear and abolished the filibuster for lower court appointments.
The dramatic parliamentary move allowed Obama to catch up on confirmations—he ended up appointing 327 lower court judges over his two terms, one more judge than Bush. But when Republicans took control of the Senate in 2015, confirmations slowed to a trickle, and Obama’s confirmation rate plummeted from 90 percent to 28 percent.
That wasn’t the first time Republicans launched a blockade of Democratic judicial appointments. We often look at the near-unanimous votes for Bill Clinton’s Supreme Court nominees to tell us that all used to be tranquil in the judicial confirmation process. We forget that Republicans strangled Clinton’s ability to fill vacancies in his final years. In December 1999, Oklahoma Senator Jim Inhofe put a procedural hold on all judicial nominees and tried to do so for the duration of Clinton’s presidency. Republican Senate Majority Leader Trent Lott got Inhofe to back off. Nevertheless, in Clinton’s last year in office, 42 of 81 nominees did not get confirmed, with 38 not even receiving a hearing.
What Clinton-era Republicans never contemplated was denying a hearing to a Supreme Court nominee. But at the end of the Obama presidency, they did just that to Garland. Garland was a 64-year-old moderate promoted by the devoutly conservative Utah Senator Orrin Hatch, not a 40-something liberal firebrand who could have stayed on the bench for decades. If he had replaced the conservative Scalia, the Court would have had a modest move to the left. But preventing Garland’s ascension let Republicans poach a Supreme Court seat and helped pull the Court further to the right, a political gamble that paid off handsomely. In the 2016 campaign, Trump went so far as to publish a list of potential Court nominees for that vacancy and pledged to appoint justices who would overturn Roe v. Wade.
The Republicans’ preferred brand of judicial hardball didn’t involve personal attacks or charges of sexual misconduct, and it didn’t involve verbiage. But the substantive impact was much more significant than what happened to Kavanaugh or Thomas (both of whom now sit on the Supreme Court) or even the Democratic filibusters from the Bush years.
On Hugh Hewitt’s radio show, Graham said that after he supported Obama’s nominations of Sotomayor and Elena Kagan, “I would expect the favor to be returned … But Kavanaugh was the destruction of a fine man [and] Amy Coney Barrett was treated like she’s a weirdo because of her faith.” Graham refuses to recognize that Barrett’s longtime vocal opposition to abortion, rooted in her religious beliefs and validated by Trump’s campaign pledge, raised legitimate questions about whether she would separate her personal views from her judicial duties. More broadly, Graham can’t acknowledge that his votes for Obama’s nominees weren’t much of a favor, as they didn’t offset the obstructions that followed.
Politics ain’t beanbag, and that’s doubly true for judicial politics. But let’s have a clear-eyed assessment of how both parties have waged battle.
Democrats have been more selective in their targets, aiming to block far-right ideologues and set high standards regarding past sexual misconduct. Such an objective does require harsh treatment of individuals. Republicans have sought to deny Democrats the ability to fill seats with anyone. Such an objective requires not harsh treatment but the silent treatment. Republicans may want you to think that this makes them both chivalrous soldiers and sympathetic victims in the judiciary wars. But make no mistake: They have used brutal—and brutally effective—parliamentary tactics that have deprived us of an ideologically balanced Supreme Court.