Don’t punish Lindsey Graham for supporting Kagan

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President Obama’s nominee for the Supreme Court, Elena Kagan, gets a thumbs-up from the Senate Judiciary Committee, with South Carolina Republican Lindsey Graham joining the Democrats in voting for her.  The Washington Post‘s Dana Milbank praises Senator Lindsey Graham’s vote, prompting a fierce denunciation from Ed Whelan and others.

Sorry, Ed, you marshal facts well and ably point out some of the biases in Milbank’s piece — but I’m with Senator Graham on this one.  It’s a bad idea to demonize Senator Graham on this vote.  I’ve written of my own skepticism about Elena Kagan, in particular, her hypocritical, and, I believe, indefensible, position with respect to the Don’t-Ask-Don’t-Tell policy imposed upon the military by President Clinton and Congress.  But I don’t think that position disqualifies her categorically from confirmation as a Supreme Court Justice when the elected president of the United States says she is qualified.

I agree with Senator Graham.  Elections have consequences.  One consequence — of, I hope, ever greater notoriety — is that conservative presidents nominate conservative jurists to the bench, and liberal presidents nominate liberal jurists to the bench.  I want every American, of every stripe, to appreciate that consequence, because it is one of the most significant — and, given the power of our judiciary, one of the most far-reaching.  Senator Graham’s vote promotes that understanding.  And whenever henceforth we are tempted as a nation to vote for a presidential candidate, despite our disagreement with his or her political philosophy, let the opinions that Elena Kagan will write remind us of consequences.

Conservatives are upset, and not entirely without reason, that Senator Graham’s vote is a kind of “unilateral disarmament,” a gesture that Democrats do not make when Republican presidents nominate judges.

Certainly the nomination of Samuel Alito bears out that accusation.  Samuel Alito was confirmed in January 2006 by a largely party-line vote of 58-42, with four moderate Democrats (if you include the late Senator Byrd as a moderate) voting Yes, and even one Republican, Lincoln Chafee of Rhode Island, voting No.  By Democrats, there was virtually no deference to the president’s nominee.

The nomination of John Roberts the year before presents a more interesting and textured picture.  John Roberts was a brilliant and eminently qualified jurist.  Indeed, he had been credited by Supreme Court insiders with authoring the “best brief that the Justices [of the Supreme Court] had ever seen.”  Justice Ruth Bader Ginsburg called him the “best” advocate to come before the Supreme Court.  He was a supremely qualified jurist on all but possibly ideological grounds (i.e., he was conservative).

John Roberts was confirmed in September 2005 by a vote of 78-22, with all 55 Republicans and 22 of the 44 Democrats voting Yes.  The roster of No votes is a compendium of Most Reliably Liberal Senators Ever, including Chuck Schumer, who acknowledged that even Roberts’ opponents called him “one of the best advocates, if not the best advocate, in the nation,” but nevertheless voted No, Ted Kennedy, Joe Biden, Barack Obama, Barbara Boxer, Dick Durbin, and Tom Harkin.

Interestingly, the No votes also included some notable moderates, most visibly Hillary Clinton and Evan Bayh — and there you have one key to the politics of judicial confirmation votes.  Nothing in the admirable Senator Bayh’s record or pronouncements would have predicted a No vote on perhaps the most qualified jurist to be nominated for the Supreme Court in our lifetime.

Yet he voted No.  Unprincipled?  By strict standards of principle, yes, because his vote was driven by his presidential aspirations, and everyone knows, when you’re contemplating a presidential primary, you need to tack left if you’re a Democrat and tack right if you’re a Republican.  So whatever the actual views of Bayh and Clinton on the qualifications of John Roberts, presidential primary politics obliged them to establish bona fides with the base and say No to a conservative.

Bayh stunned the political world in February by announcing his retirement from the Senate, and set off a bit of a firestorm with his denunciation of partisan politics.  Perhaps Bayh, by all accounts a good and decent man with integrity, remembered his vote against John Roberts and how he was himself swept into the partisan politics he came to denounce with such vehemence.

On a smaller scale, Senate primary campaigns likewise dictate the partisan votes of senators when presidents nominate Supreme Court justices.  As a political calculation, what senator from a conservative state wants to invite serious challenge in the primary because he or she voted for a liberal jurist?  And what senator from a liberal state wants to invite serious challenge in the primary because he or she voted for a conservative jurist?  That calculation is aggravated by the possibility that the jurist in question might author a controversial high-profile opinion, with which challengers may tarnish the sitting senator by association.

Indeed, Lindsey Graham’s vote in favor of Kagan has already produced exactly such rumbling in South Carolina.  An unnamed political operative in South Carolina said of Graham’s primary challengers in 2014, “it’s no longer a question of ‘if’ but ‘who’ and ‘how many.'”

That’s politics.  If Lindsey Graham is punished in South Carolina for his Elena Kagan vote — either by losing the primary or by being weakened in the primary and thus losing the general to a Democrat — then we have our answer about the politics of judicial confirmation votes.  You always vote against the nominee of a president from the other party.

But that would be most unfortunate.  It would eliminate any fair assessment of nominees, and it would squander the possibility of signaling powerfully to Americans that national elections have consequences.

Kendrick MacDowell is a lawyer and writer in Washington, D.C.

Kendrick Macdowell