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Sen. Lindsey Graham on SCOTUS pick: “I want you to use my words against me.”

Posted by Warm Southern Breeze on Sunday, September 20, 2020

“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.”

– South Carolina Republican Senator Lindsey Graham, to the Senate Judiciary Committee March, 10, 2016


BACKGROUND: Supreme Court Justice Antonin Scalia had earlier died unexpectedly during his sleep while on a hunting trip in Texas on February 3, 2016, thus creating an opening on the nation’s highest court. Within an hour of the national notice of Justice Scalia’s death, Senate Republican Majority Leader Mitch McConnell (KY) had issued a statement to the effect that he would not grant any consideration (floor vote) to any nominee from President Barack Obama.

Republican Senator Chuck Grassley of Iowa, Chairman of the Senate Judiciary Committee, had made his intentions known that he would follow the so-called “Biden Rule,” which referred to then-Delaware Senator Joe Biden’s speech on the Supreme Court confirmation process, given June 25, 1992 on the Senate floor. [C-SPAN linked video]

NOTE: Senator Biden’s verbatim remarks on Thursday, June 25, 1992 may be found in the Congressional Record, Volume 138, part 12, beginning on page 16307, and continuing through to page 16321. At that point, Senator Strom Thurmond of South Carolina began to make his responses, all of which are found on page 16321. The file may also be downloaded from this site here: Congressional Record Senate 6-25-1992 Biden–Reform of Confimation Process speech aka “Biden Rule”

In that speech, Biden argued that then-President George H.W. Bush should wait until after the November General Election to put forth any nominee to any potential Supreme Court vacancy which might arise during the summer, or if not, should establish a precedent, and nominate a moderate whom would be acceptable to the then-Democrat-controlled Senate.

Republicans later began to refer to that concept as the “Biden rule,” though Biden reiterated that he had always thought that the President and Congress should “work together to overcome partisan differences” when considering judicial nominees.

South Carolina Senator Lindsey Graham, (R)

Linked above from C-SPAN are South Carolina Republican Senator Lindsey Graham’s full remarks (approximately 6 minutes) to the Senate Judiciary Committee on March 10, 2016 on the matter of consideration of SCOTUS nominees in an election year.

In his remarks, he noted that he had voted FOR Elena Kagan, and Sonia Sotomayor NOT because he agreed with them ideologically, but because he thought they were qualified.

In those same remarks, he also warned also of an increasing tendency of the Senate toward rancor, like in the House of Representatives, and of ideological partisanship accompanying judicial nominees, some of which COULD in the FUTURE be significantly detrimental to the nation because of a nominee’s unfitness for the bench, and an ideological unwillingness of the controlling party to compromise, or for an unwillingness of dissenting members in the controlling party to vote against an unqualified candidate put forth by the controlling party.

C-SPAN VIDEO DESCRIPTION: The Senate Judiciary Committee held a business meeting on whether to hold a hearing on a Supreme Court justice nomination to replace Justice Antonin Scalia. Committee Chair Chuck Grassley (R-IA) said a nominee would not be considered by the Senate until a new president is elected and sworn in. Democratic members argued that considering presidential nominees is part of the Senate’s constitutional duty.

South Carolina Republican Senator Lindsey Graham’s remarks to the Senate Judiciary Committee, March 10, 2016:

“Well, I can tell you one person doesn’t believe in polls, and that’s Hillary Clinton.[laughter] She was 21 points ahead of Bernie in Michigan… and lost. According to the Real Clear Politics average.

“So… 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 regarding fairness, about judges, from people who I think have been exceedingly unfair.

“And I like you all very much, and I want to do what I can, but the senate’s evolving in a very bad way.

“We don’t have 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 mass, 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” – 7 Democrats, 7 Republicans.

“Only 3 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, and you know… this is… 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 were lost.

“And the very same people are beating the crap out of me now, because I would sometimes work with the other side.

“So I know what I’m getting.

“Here’s what is going to happen:

“In the unlikely event 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 keeps doing well – and something else happens that 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 gonna send over in a few days.

“And I’m gonna’ vote for that person and think they’re qualified. I voted for Sotomayor and 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’d 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 2 Republican Supreme Court Justices, so when he called me, I said, “Is this the same guy that filibustered Alito and Roberts? So you’re asking me to do something you couldn’t do yourself – which is, in your view, 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, and if Ted Cruz or Donald Trump get to be President, they have all asked us not to confirm or take up a selection by President Obama.

“So, 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 are setting a precedent here today, Republicans are, that in the last year – at least of a lame-duck, 8-year term, I would say is going to be a 4-year term – that you’re not gonna’ fill a vacancy of the Supreme Court based on what we are doing here today.

“That’s gonna’ be the new rule.

“When y’all change the rules, about appellate judges and district court judges, to get your way – I thought it was really abuse of power – and what you have done here, is you have 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?

“That we are going to pick the most hard ass people we can find… and dare somebody in the conference to vote against that person.

“You’re gonna’ to have the most liberal members of your caucus pushing the most liberal judges, ’cause you don’t need to reach across the aisle to get any of our input, and we’ll do the same.

“So over time, the judiciary is gonna’ 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 nut job – and they will; and I’ll fight if I truly think they’re a nut job – that’s gonna’ happen on your side, too. [gestures to Minnesota Democratic Senator Al Franken]

“So… this is where we find yourselves. I’m saddened by the fact that the Senate has gone down the road we have gone. I’m very much supportive of what you’re doing, Mr. Chairman. I don’t think you’re doing anything wrong. And I just want the members on this side to know, 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 that’s what I think the Constitution envisioned by advise and consent.

“There is no roadmap in the Constitution of what to do and when to do it.

“The Senate has always done what it thought was best, at the time it was in.

“What the time we’re in seems to be to play politics with judges, pretty much on both sides. But ya’ll 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 gonna’ change the rules of the Supreme Court. They’re gonna’ get frustrated. So it’s just a matter of time before the Senate becomes the House, when it comes to judges. And I really hate that.”

Iowa Republican Senator Chuck Grassley in 2016 was then Chairman of the Senate Judiciary Committee.

Grassley Statement after Meeting with President Obama on Supreme Court Vacancy – Chuck Grassley (PDF)
Tuesday, March 01, 2016

Grassley Floor Statement: Politicizing the Court – Chuck Grassley (PDF)
Wednesday, March 2, 2016

The Role of Supreme Court Justices – Chuck Grassley (PDF)
Tuesday, March 15, 2016

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