Whether Graham or a Republican ends up backing Biden’s eventual Senate nominee 50-50 will be a new test for the president’s long-stated and rarely realized ambitions to see Washington adopt a more bipartisan approach after Trump-era bitterness. .
Democrats say securing a bipartisan vote is a top priority in the confirmation battle. “It will be great for the Senate. It will be great for the Supreme Court,” Durbin said after a meeting at the White House on Thursday. “I hope we can achieve this goal.”
This effort will make Graham a senator to watch.
Whether the Democrats can win Graham’s vote — and that of other Republicans such as Senators Susan Collins of Maine and Lisa Murkowski of Alaska — remains to be seen. The lingering bitterness over the way Republicans fought their way to a Supreme Court majority under Trump is still a dividing line.
Graham has occasionally signaled his willingness to initially associate with the Democrats, only to later retreat to a partisan corner.
Graham led efforts in the Senate to defend Brett Kavanaugh, a Trump High Court nominee, from sexual assault charges, and it was Graham who brazenly abandoned his promise to refrain from upholding justice during of a presidential election year. As chairman of the Senate Judiciary Committee, he helped put Amy Coney Barrett in court just days before Biden’s November 2020 election victory.
But Graham also has a history of working with Democrats and has long said lawmakers should show deference to the president’s picks. He was the only Republican on the committee to vote for two of President Barack Obama’s Supreme Court nominees. Graham also voted against just a handful of Biden’s judicial nominees while supporting about 30.
“I play the game differently than everyone else,” Graham told The Associated Press when explaining his votes.
While some GOP members scoffed at Biden’s promise to nominate a black woman, a historic first, Graham was quick to defend it. “Put me on the side of making the court and other institutions look like America,” he said.
But there is a catch. Graham wants the choice to be fellow South Carolinian, U.S. District Judge Michelle Childs, and said her vote would be “much more problematic” if it wasn’t her. He calls Childs someone “I see myself supporting – if she does well here” and argues that she could win the most support from the GOP.
“She’s got a hell of a story, and I think she’d be someone who could bring the Senate together and probably get 60+ votes,” Graham said Sunday on ABC’s “This Week.”
The White House said Childs, who was nominated for a federal appeals court when Breyer announced her retirement, is being considered even as some liberal and labor advocacy groups question her balance sheet.
Although Durbin did not endorse a specific candidate, he said he liked Graham’s strategy. “Starting with one or two Republican votes is a great start for any candidate,” he said, adding, “Lindsey is and always will be an independent.”
Part of Graham’s talk about Childs is that – unlike all current Supreme Court justices other than Barrett – she did not go to an Ivy League school. Matt Moore, a GOP strategist who consulted for Graham during his 2020 campaign, said Childs’ promotion is also drawing voters back home.
“There’s a certain state pride in seeing someone from South Carolina being considered for the Supreme Court,” Moore said.
Although Graham has backed many Democratic justice contenders, he has also toed the party line at two critical junctures – the first by preventing current Attorney General Merrick Garland from even getting a hearing when he was named to the Supreme Court in the final year of Obama’s presidency. Then, four years later, he flip-flopped as chairman of the Judiciary Committee and guided Barrett’s nomination days before the presidential election.
These positions secured a 6-3 Conservative majority in the High Court, an ideological balance of power that will remain in place even after Breyer’s replacement is confirmed.
But it’s Graham’s defense of Kavanaugh that is perhaps the senator’s defining moment. Graham broke into the Democrats at a hearing in which Christine Blasey Ford accused Kavanaugh of sexually assaulting her in high school. Kavanaugh denied the charges.
With anger in his voice, Graham blamed Democrats for dealing with Kavanaugh in a viral moment celebrated by conservatives.
“Boy, y’all want the power,” Graham said, turning to the Democrats on the committee. “God, I hope you never get it. … I hate to say it because they’re my friends.
Now there are signs that senators want a detente. Aware of the vote to come once Biden makes his choice, Democrats are reluctant to focus on the times Graham angered them.
“I think he looks at the merits of these people and their qualifications, which is to be commended,” said Sen. Richard Blumenthal, a Connecticut Democrat who sits with Graham on the committee.
Democratic leaders also praised Graham last week for his work on a bill ending forced arbitration for workplace sexual assault and sexual harassment claims. Durbin called him a “vital partner” in this. Senate Majority Leader Chuck Schumer of New York was even more expansive.
“When he’s behind something, it gets done,” Schumer said. “So I want him to be behind more things with us in the future.”
Still, some won’t be surprised if Graham ends up opposing Biden’s choice.
Hawaii Sen. Mazie Hirono, a Judiciary Committee Democrat who has worked with Graham in the past, said, “Pretty much everything Lindsey does, the back and forth and all that, doesn’t shock me anymore, which is a pity. Because I think Lindsey is a much, much better person than those kind of flip flops would indicate.
Graham was first elected to the Senate in 2002, about a decade after the Senate voted 96-3 for liberal Ruth Bader Ginsburg for the Supreme Court, and about 16 years after the Senate voted 98-0 for the curator Antonin Scalia. Graham said the overwhelming confirmation of ideological opposites shows what has been lost.
“One is very conservative, the other is very liberal, but they were clearly qualified,” Graham said. “It was like that before. Now it’s all about tribal politics and people are worried about the primaries.