Wisdom from Sen. Graham on SCOTUS Nominations

Democrats might do well to take heed

Senator Graham at Kavanaugh’s confirmation hearings.

The last senator to speak during confirmations for Brett Kavanaugh (President Trump’s nominee to the Supreme Court), Lindsey Graham of South Carolina offered some frank commentary about the points raised by Democrats in the course of the proceedings on September 4.

He offered numerous quotations and statements by Democrats from years past that contradict their complaints about Kavanuagh’s nomination and the circumstances in which it occurs. He alleged that political motivations are the source of these pivots. He summed up his thoughts with the following statement:

You had a chance, and you lost. If you want to pick judges, from your way of thinking, then you’d better win an election.

As he alternated between addressing Democrats and Kavanaugh himself, he went on to point out a need to get politics out of the process:

I voted for two of your choices: Sotomayor and Kagan. Got a lot of crap. I would suggest you think long and hard, if you’ve got a political ambition, of voting for this guy, because he will not play well on your side. And why did I do it? I thought they were qualified by any reasonable measure, given the history of the Senate, but we have turned the history of the Senate upside-down. I found that they were different than I would have picked — Sotomayor and Kagan — but by any reasonable measure, they were qualified. You’ve been on the court for twelve years. You’ve had 307 decisions. You’ve been approved before. So, I hope people in the country understand this game. It’s a game that I am sad to be a part of. It’s gotten really bad. The antidote to our problems in this country, when it comes to judges and politics, is not to deny you a place on the Supreme Court. This is exactly where you need to be. This is exactly the time you need to be there…and to my friends on the other side: you can’t lose the election and pick judges. If you want to pick judges, you’d better win.

Graham’s plain speaking stands out. While many Democrats will be tempted to argue that the election was stolen, the truth is that a better campaign (and a better candidate) by the Democratic Party would have changed the outcome. We had a shot, we blew it, and this is the consequence of our failure. We have to respect the institutions as they function, even when we lose control of them, and that was at the heart of Sen. Graham’s remarks.

Do I think it was fair that Mitch McConnell blocked Obama’s nomination, Merrick Garland, to replace Antonin Scalia in the final year of his Presidency? No. Hopefully, Sen. Graham also thinks that that was a low move and that Obama had adequately won his own election, but it is also true that Democrats have allowed themselves to lose sufficient control of the Senate to vindicate the GOP’s obstructionism. The South Carolinian’s remarks therefore echo in my mind: “If you want to pick judges, you’d better win,” and this does not apply exclusively to the White House. We had 60 out of 100 seats in the Senate, after all, just eight years ago. Where did we go wrong?

I disagree with Sen. Graham on most issues. On this issue, which seems to be a more foundational one, however, I am compelled to agree. To tear apart the norms of the Republic or to go back on standards that we upheld when we were powerful is not the proper course. We cannot complain about Trump doing just that and then do it ourselves, to be sure. My hope is that Democrats who heard Graham speak this week can absorb some of the lessons in his words here. They are words of wisdom — from the enemy, admittedly — but that does not lessen their veracity.

As I take part in the 2018 elections, the structural weaknesses of the Democratic Party are becoming clearer and clearer to me, and this is after a lot of efforts to improve ourselves have been made, post 2016. It leads me to wonder if we can continue to blame the other side for our losses, when there is so much more we can do in planning, preparation, and execution that we regularly fail to do.

Our failures are not only electoral. Suppose that the new Supreme Court does end up overturning Roe v. Wade. That will end up being our fault not only electorally but also legislatively. Taking abortion rights for granted, as controversial as they are and when they rely on the continued pleasure of only five people, was foolish. It has been four decades. A law could have been passed at this point to secure abortion rights not only in judicial precedent but in federal statute. We did no such thing, and we are about to see how ephemeral the security of the courts is.

Our strategy for the future must include a willingness to go the extra mile, even after successful litigation. We must go on to pass the actual laws that we want to remain in effect. In order to build the kind of coalition to do that, however, we need to play the long game. We cannot sabotage government that we do not like, or, at the very least, we should not. As I have said many times, we have to be proactive, not reactive. Graham was able to show this by supporting two of our justices, and for most of the history of the Senate, this is how it has worked. If we are unable to put people on the Court anymore, we will set ourselves up for constitutional crisis after constitutional crisis, and when that happens, there will be a lot more at stake than just reproductive rights.