WASHINGTON — Sen. Lindsey Graham of South Carolina laid out a blunt assessment on Thursday morning of the state of judicial nomination politics — attacking the road the Senate has gone down, as he described it, while still backing the current move against any consideration of President Obama’s coming Supreme Court nominee.
The business meeting of the Senate Judiciary Committee served as the first opportunity for the committee members to share their views, in committee, on the issue of the Supreme Court vacancy left by the death of Justice Antonin Scalia.
While most of the speeches fell along partisan lines, Graham, a Republican from South Carolina, decried the politicization and acknowledged that the Republicans' action is unprecedented.
"We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today," Graham said. "That’s going to be the new rule."
Graham noted that, while he supported the move, the rule could come back to haunt a later Republican president, saying, "[Y]ou could use my words against me, and you’d be absolutely right."
At the same time, Graham placed significant blame for the current situation on the Democrats' move to end the 60-vote requirement to avoid a filibuster for lower-court judicial nominees.
"[T]he judiciary is going to be more ideologically driven because the process in the Senate now does not require you to get outside your own party," he said. "So, I’ll be fighting talk radio when somebody on my side puts up a nutjob — and they will. And, I’ll fight if I think they’re truly a nutjob. And it’s going to happen on your side, too."
Graham concluded with a warning that the same rule change is coming for Supreme Court nominees — "it’s just a matter of time" — and said he "hate[s]" that prospect.
Here is Graham's full speech:
The moral high ground is a shaky place to be in the Senate when it comes to judges, so I won’t go there.
I will say, if you live long enough, it’s fascinating, a long life allows you to be lectured to about judges by people who have been exceedingly unfair, and I like you all very much, and I want to work with you where I can, but the Senate’s evolving in a very bad way. We don’t need to go back to the Civil War to find out where we’re headed. We’re headed to changing the rules, probably in a permanent fashion.
When President Bush’s nominees were filibustered en masse, there was a temptation on our side to do the nuclear option. I was one of the Gang of 14 that said, “Let’s not go down that road.” Seven Democrats, seven Republicans — only three of us are left, and we found a way to confirm most of President Bush’s nominations. He lost a handful.
I got the crap beat out of me at home, and when I told people I just thought that consequences come with elections, "We don’t want to change the 60-vote rule because you may need it one day yourself." Nobody wanted to hear that until we lost, and the very same people are beating the crap out of me now because I would sometimes work with the other side.
Here’s what’s going to happen: In the unlikely event that we lose the White House, which I know is hard to believe given the dynamic of the Republican Party now. But, just in case we lose, and I know that seems almost impossible to imagine, Hillary Clinton is going to be president — unless Bernie [Sanders] keeps doing well, and something happens I don’t know about.
Let’s just assume for a moment she is president. I’m telling everybody on my side, she’s going to pick somebody probably more liberal than President Obama’s going to send over in a few days — and I’m going to vote for that person if I think they’re qualified. I voted for [Sonia] Sotomayor and [Elena] Kagan, not because I would have picked ’em, but because I thought the president of the United States deserves the right to pick judges of their philosophy and that goes with winning the White House.
Why do I feel comfortable doing this? The history of the Senate is pretty clear here. The current vice president, in 1992, argued for what we’re doing. The sitting president of the United States filibustered two Republican Supreme Court justices. So, when he called me, I said, “Is this the same guy that filibustered [Samuel] Alito and [John] Roberts? So, you’re asking me to do something you couldn’t do yourself, which is, in your view, to be fair. I never thought you were fair to our judges, but it’s not about me paying you back. It’s trying to have some process I think will stand the test of time.”
This will stand the test of time. This is the last year of a lame-duck president.
If Ted Cruz or Donald Trump get to be president — they’ve all asked us not to confirm or take up a selection by President Obama — if a vacancy occurs in their last year of their first term, guess what? You will use their words against them.
I want you to use my words against me. If there’s a Republican president 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,’” and you could use my words against me, and you’d be absolutely right.
We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today.
That’s going to be the new rule.
When y’all changed the rules about appellate judges and district court judges to get your way, I thought it was really an abuse of power. And what you have done here is you’ve made the caucuses — the Republican and Democratic caucuses — are now not going to have to reach across the aisle when it comes to appellate judges and district court judges to get input from us or we get input from you.
So, what does that mean? We’re going to pick the most hard-ass people that we can find. And dare somebody in the conference to vote against that person. You’re going to have the most liberal members of your caucus pushing you to pick the most liberal judges cause you don’t need to have to reach across the aisle to get any of our input — and we’ll do the same.
So, over time, the judiciary is going to be more ideologically driven because the process in the Senate now does not require you to get outside your own party.
So, I’ll be fighting talk radio when somebody on my side puts up a nutjob — and they will. And, I’ll fight if I think they’re truly a nutjob. And it’s going to happen on your side, too.
So, this is where we find ourselves. I’m saddened by the fact that the Senate has gone down the road we’ve gone. I’m very much supportive of what you’re doing Mr. Chairman. I don’t think you’re doing anything wrong, but I just want the members on this side to know that if we lose this election, my view of what the president to come will be able to do is the same.
If it is Hillary Clinton or Bernie Sanders, and they send over a qualified nominee, I am going to vote for them in this committee and on the floor, because I think that’s what the Constitution envisioned by advise and consent. There is no roadmap in the Constitution of what to do, when to do it.
The Senate has always done what it thought was best at the time it was in. At the time we’re in, what’s best seems to be to play politics with judges — pretty much on both sides.
But, y’all started a new game when you changed the rules. There’ll come a day when you have a Republican or Democratic president with a Republican or Democratic Senate, and they’re going to change the rules on the Supreme Court. And it’ll get frustrating.
So, it’s just a matter of time before the Senate becomes the House, when it comes to judges, and I really hate that.
Thank you very much.
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at firstname.lastname@example.org.
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