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Graham says quiet part aloud with warning to Dems on future Supreme Court picks

New norms from Republicans could force Democrats to pick between following traditional rules or missing out on judicial confirmations

Digging an even deeper partisan hole for the Supreme Court appointment process, Republican Senator Lindsey Graham said on Monday that Judge Ketanji Brown Jackson would not have received a hearing if Republicans controlled the Judiciary Committee. 

“I’ll say this: If we get back the Senate, and we’re in charge of this body and there is judicial openings, we will talk to our colleagues on the other side; but if we’re in charge, she would not have been before this committee,” Graham said during Monday’s committee meeting. 

Republicans blocking Democratic nominees is not new. Many of former President Barack Obama’s nominees were blocked — most notably Merrick Garland, who is now the attorney general, when he was nominated to succeed the late Justice Antonin Scalia. With Republicans in the majority at the time, the Senate Judiciary Committee blocked Garland’s nomination on the basis that it was too close to the 2016 presidential election to nominate a new justice. With even less time to spare before the 2020 presidential election, however, then-Majority Leader Mitch McConnell reversed course and fast-tracked the nomination of Justice Amy Coney Barrett

That Graham would overtly acknowledge his party’s strategy left tongues wagging Monday on Capitol Hill. 

“What’s interesting about Graham’s comments is that I think it’s one of the first times people have sort of said it out loud,” Maya Sen, a professor at the Harvard Kennedy School, said in a phone call. “I think that’s what’s newsworthy about it — not that people didn’t know that this was sort of part of the Republican playbook at this point, to the extent that they could do it, but I think it’s unusual to have people say it out loud.” 

Graham goes on in his comments to say that, instead of Jackson, the country should have a more “moderate” appointee. Experts say Republicans are trying to paint Jackson as an extremist judge, but that portrayal does not match up with her judicial record. As evidence of this, many point to Jackson’s focus on the importance of text and its original meaning — ideas usually associated with more moderate or conservative judges. 

“She explicitly pushed back on the notion of a living Constitution or a Constitution that is infused with her own values, and so I think that the Republican rhetoric around Ketanji Brown Jackson’s extremism fundamentally didn’t match with the judge that we saw in the Supreme Court confirmation hearing,” Miranda Yaver, a politics professor at Oberlin College, said in a phone call.

Graham’s opposition to Jackson’s judicial philosophy could explain his decision not to vote to confirm her to the high court bench, but it doesn’t provide an explanation on why she shouldn’t have gotten a hearing before the committee. Regardless of his explanation, however, Graham’s statement comes as a reminder that giving nominees a hearing is the norm but not required by law. 

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“This is perhaps a painful reminder that the United States relies heavily on norms, not simply laws,” Yaver said. “The norm has been that those who are nominated get hearings. They’re breaking the norm by denying a hearing. They’re not breaking a firm rule.” 

Because the branches of government are often controlled by opposing parties, the U.S. relies on cross-party cooperation to fill judicial vacancies. Experts say that without it, there will likely be vacancies. 

“The reason why it’s a source of concern is because it’s frequently the case that the party that controls the White House is not the party that also controls the Senate,” Sen said. “So in order to fully staff the courts, there just has to be cross-party cooperation, otherwise you’re just going to have vacancies.” 

This could mean that, if another Supreme Court seat opened up with Republicans controlling the Senate, that the court would be out a member. The current conservative supermajority makes being short a justice a lot less impactful than in a case where a swing vote needed to be replaced. No one expects the court’s present ideological makeup to last forever, however, and this could cause problems down the road.

While Democrats have previously experienced a Supreme Court nomination being held hostage by Republicans, experts say it doesn’t appear they fully grasp what Graham’s strategy could mean for future nominations. 

“I don’t think Democrats, primarily, have really understood the full implications of that because anytime there’s going to be a Democrat in the White House and Republicans control the Senate, that president is not going to be able to get their candidates confirmed,” Sen said. “It’s just going to create a huge backlog of vacancies, and it’s going to make it much harder for Democrats to get their nominees through.” 

While Graham did not specify if Republicans would attempt to jam up lower court confirmations as well, experts warn that this is a possibility on the horizon. 

“One thing that was not expressed by Senator Graham, but that I wouldn’t be surprised at given what we observe with the Obama presidency, is that the pushback against opposing party nominees will probably extend to lower courts as well,” Yaver said.

There has been no indication that Democrats would follow this new norm if Republicans move forward with a strategy to block nominations. In a way, this means the parties are playing the same game with different rules

“Republicans are out there playing what we would call constitutional hardball,” Sen said. “They’re bending rules, they’re pushing the limits, they’re trying to see what voters will tolerate, and Democrats, by and large, are playing by the old rules.” 

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Experts say this will force Democrats to make the choice of either following the old rules and risk losing out in the courts or following new norms that they might not agree with. 

“I think that’s what the Democratic Party needs to figure out for themselves is, are they willing to play by these tactics which defy historic norms and be able to confirm a nominee and ensure a little bit more control over the composition of the judiciary, or do they play by the typical rules and lose out in the courts,” Yaver said.

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Republican Senator Lindsey Graham’s statement comes as a reminder that giving nominees a hearing is the norm but not required by law.