Republican Sen. Lindsey Graham broke ranks in the Obama era, voting for the president’s two Supreme Court nominees. Under Joe Biden, Graham has endorsed dozens of lower court appointees, including Supreme Court nominee Ketanji Brown Jackson for the Washington Circuit Court of Appeals last year.
But now that GOP opposition is hardening to Jackson’s Supreme Court bid, Graham has taken a very different approach: He has sharpened his attack on the candidate, assuming she will vote against his nomination.
In an interview with Citizen Free Press, Graham blamed Biden, first for voting for the obstruction of Janice Rogers Brown, a black woman chosen by George W. Bush to serve on the Washington Circuit, nearly two decades ago, and more recently for elect Jackson over District Judge Michelle Childs, whom Graham was pushing for the high court.
“He has made a political decision,” Graham said of Biden. “These are all political decisions. Every president’s choice of the Supreme Court has a political calculation. He made the decision ‘I’m not going to go the consensus way. I’m going to go the grassroots way.’ my decision based on your decision.”
The recognition underscores the abrupt change in the treatment of Supreme Court nominees over the past two decades: from a time when senators used to be deferential to presidents of both parties to a more recent one when it is difficult to even win a handful of votes from the opposing party, given the intense partisan battles.
Each side blames the other for the deterioration, with Republicans criticizing Democrats for their treatment of Bush and Trump candidates, while Democrats are quick to point out that Senate GOP leader Mitch McConnell maintained a vacant seat for more than a year to let then-president Donald Trump put his mark on the court.
Hearings advance for the confirmation of Jackson in the Supreme Court
Now, as Jackson’s marathon hearings wind down and confirmation votes are scheduled, it’s almost certain that Jackson – a 51-year-old Ivy League-educated judge, who would be the first black woman in history to sit on the high court and whose credentials and behavior have been praised by both parties, may not win more than a few Republican votes, meaning she could be one of the votes of closest confirmations in US history.
“Things have changed a lot in the last 10 or 20 years,” Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said in an interview. “It’s very hard to really create a bipartisan unity. I hope we can do this, but as you can see, it’s going to be a struggle.”
In 2018, Trump’s pick of Brett Kavanaugh was confirmed by just 50 votes to 48 — after he had been accused of sexual assault, something he angrily denied — the narrowest margin of any judicial appointee since Civil war post-Reconstruction.
Amy Coney Barrett, for her part, did not get any Democratic votes, and was confirmed by only 52 for, 48 against, over Democratic objections that the nomination was pushed just days before the election.
The narrow margins are a stark difference from the 96-3 vote enjoyed by liberal Ruth Bader Ginsburg in 1993 and the 98-0 vote won by conservative Antonin Scalia in 1986.
In Jackson’s case, Republicans will almost certainly vote against her en masse, raising concerns about her sentencing decisions in child pornography cases as a district judge, her representation of Guantanamo Bay detainees as an attorney, as well as his refusal to take positions on some burning issues, such as changing the size of the Supreme Court.
Jackson has defended her career, saying she can’t weigh in on political issues like the size of the high court, while maintaining that having been a lawyer doesn’t mean she has the same views as her client.
And in several heated exchanges with Republicans, Jackson has said her sentencing decisions in the child pornography cases were based on the evidence in each case and the limitations imposed on judges by Congress.
Democrats say her sentencing decisions are within the flow of judges across the country, including many backed by Republicans.
But Republicans say they don’t buy it.
“He’s been eloquent and he’s done a good job in terms of his tone and demeanor,” said Senate GOP chairman John Thune of South Dakota. “But I think she has gone deeper into the sentencing guidelines, and that is starting to raise some alarm bells for our members.”
Thune’s prediction is that the universe of potential Republican yes votes is three, the same number of votes Jackson received for his current job.
“Right now, it probably won’t go much further than that,” Thune said.
Potential GOP swing votes are slim
With Graham likely casting a negative vote, it’s uncertain where his endorsement count could grow.
Senator Susan Collins of Maine, who is not on the Senate Judiciary Committee and voted for Jackson to the Washington Circuit last year, was close with the judge when she met with her before the hearing, saying on Wednesday that he was still assessing his position now.
“Yesterday I was at the Health Committee and the Intelligence Committee. Last night I saw some of the extracts,” Collins said. “I’m not going to make a decision until the hearings are over.”
Alaska Sen. Lisa Murkowski, who also voted for Jackson for the lower court and is not on the panel, says she is still evaluating the nominee and has not yet been able to see all the hearings.
Murkowski, who is running for re-election in his Republican state this year, said he had no problem with the GOP’s line of questioning over Jackson’s sentencing decisions in child pornography cases.
“I think it’s a fair line of questioning whether, in fact, through her tenure on the Sentencing Commission or as a judge previously there were issues with that,” Murkowski said.
That leaves a small universe of other senators, including retiring Republicans who could be positive votes. But those retiring Republicans — Sens. Pat Toomey, Richard Shelby, Richard Burr and Roy Blunt — didn’t comment on Jackson when asked about her Wednesday.
“I don’t think there’s anything wrong with asking questions about this important area of the law and this important area for society,” Blunt said, referring to questions about his handling of child pornography cases.
Sen. Rob Portman, a retiring Republican from Ohio, said he wasn’t sold on Jackson.
“She’s more on the liberal side on a lot of these issues,” Portman said.
Some Republicans have indicated they are still open to endorsing her, though they have opposed her in the past to enter the lower court.
Sen. Shelley Moore Capito, a Republican from West Virginia, said, “I’m watching it, but I’m still keeping an open mind.”
Sen. Ben Sasse, a Republican from Nebraska who sits on the Senate Judiciary Committee, told Citizen Free Press that Jackson “is an impressive person” even though he opposed his election to the Washington Circuit last year.
Sen. Mitt Romney, a Republican from Utah who has broken with his party on major issues, is also seen by Democrats as a winnable vote. But Romney recently told Citizen Free Press that he voted against Jackson for the Washington Circuit because he considered her “outside of mainstream judicial thought,” though he said he now keeps an open mind.
For his part, Graham has had to reconcile his support for Jackson serving on the nation’s second-highest court with his likely opposition to his ascension to the Supreme Court.
At Wednesday’s hearing, Graham lashed out at Jackson’s sentencing decisions for child pornographers and even criticized her as an “activist” for having an immigration sentence overturned while serving as a district judge, all issues that could have been raised before endorsing it for the Washington Circuit.
“The bottom line is that the difference between the circuit courts in Washington and the courts of appeals, the Supreme Court, is the ability of a justice on the Supreme Court to make the law different from what it is today, and I think that that’s something that everybody is taking into consideration,” Graham said in the interview. “It’s a different game.”
Graham added that if Biden had chosen Childs, “he could have gotten him a lot of votes.”
Now, Graham said: “I think this is going to be very hard on Judge Brown,” he said, referring to Jackson.
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