Sen. Lindsey Graham broke ranks in the Obama era, voting for President Barack Obama’s two Supreme Court nominees. Under President Joe Biden, Graham has backed scores of lower court nominees – including Ketanji Brown Jackson to the DC Circuit Court of Appeals just last year.
But now as GOP opposition is stiffening with Jackson up for a vote to sit on the Supreme Court, Graham has taken a markedly different approach — sharpening his attack on the nominee, making it all but certain he’s going to vote against her nomination.
In an interview with CNN, Graham pinned the blame on Biden – first for voting to filibuster Janice Rogers Brown, a Black woman picked by George W. Bush to serve on the DC Circuit nearly two decades ago, and more recently for picking Jackson over district court Judge Michelle Childs, whom Graham was pushing for the high court.
“He made a political decision,” Graham said of Biden. “All these are political decisions. The Supreme Court pick by every President has a political calculation. He made his decision that, ‘I’m not going down the consensus road. I’m going go down the base road.’ I’ll make my decision based on his decision.”
The acknowledgment underscores the sharp shift over how Supreme Court nominees have been treated over the past couple decades – going from a time when senators used to be deferential to presidents of both parties to more recently where it’s hard to even win a handful of defectors given the intense partisan battles. Each side blames the other for the deterioration, with Republicans slamming Democrats for their treatment of Bush and Trump nominees, while Democrats are quick to note that Senate GOP Leader Mitch McConnell held a vacant seat open for more than a year in order to let then-President Donald Trump put his imprint on the court.
Now, as Jackson’s marathon hearings wrap up and confirmation votes are slated to be held, it’s almost certain that Jackson – a 51-year-old Ivy League educated judge who would be the first Black woman in history to sit on the high court and whose credentials and demeanor have been praised by both parties – won’t be able to win more than a few Republican votes, meaning it could be one of the closest confirmation votes in US history.
“Things have changed so dramatically over the last 10 or 20 years,” Senate Judiciary Chairman Dick Durbin, a Democrat from Illinois, said in an interview. “It’s so hard to really create a bipartisan unity. I hope we can on this but as you can tell, it’s going to be a struggle.”
In 2018, Trump’s pick of Brett Kavanaugh was confirmed by just a 50-48 vote – after being accused of sexual assault, something he furiously denied – the closest margin of any judicial nominee since Reconstruction. Amy Coney Barrett, meanwhile, didn’t win any Democratic votes, confirmed just 52-48 over Democratic objections that the nomination was pushed through just days before the election. The narrow margins are a stark difference to the 96-3 vote the liberal Ruth Bader Ginsburg enjoyed in 1993 and the 98-0 vote conservative Antonin Scalia won in 1986.
For Jackson, Republicans are almost certain to vote against her en masse – raising concerns over her sentencing decisions for child pornography cases as a district court judge, her representation of Guantanamo Bay detainees as an attorney as well as her refusal to take positions on some hot-button issues, such as changing the size of the Supreme Court.
Jackson has defended her record, saying she can’t weigh in on a political issues like the size of the high court, while maintaining that serving as an attorney does not mean she has the same views as her client. And in several intense exchanges with Republicans, Jackson has said that her sentencing decisions in child pornography cases were based on the evidence in each case and the constraints on judges imposed by Congress. Democrats say her sentencing decisions are within the mainstream of judges across the country – including many backed by Republicans.
But Republicans say they’re not buying it.
“She’s been articulate and done a nice job in terms of her tone and demeanor,” said Senate GOP Whip John Thune of South Dakota. “But I think that they’ve drilled on down on the sentencing guidelines – and that is really starting to raise some alarms for our members.”
Thune’s prediction that the universe of potential GOP “yes” votes is three – the same number of votes she won for her current post.
“Right now, it probably doesn’t get much beyond that,” Thune said.
Potential GOP swing votes are scarce
With Graham likely a “no” vote, it’s uncertain where she could grow her vote count.
Sen. Susan Collins of Maine, who doesn’t sit on the Senate Judiciary Committee and voted for Jackson for the DC Circuit last year, was warm toward the judge when she met with her before the hearing, and said Wednesday she was still evaluating her position now.
“I had both the Health Committee and Intel yesterday. I watched some of the excerpts last night,” Collins said. “I’m not going to make a decision until the hearings have been completed.”
Alaska Sen. Lisa Murkowski, who also voted for Jackson for the lower court and doesn’t sit on the panel, says she is still evaluating the nominee and hasn’t been able to watch all of the hearings yet.
Murkowski, who is up for reelection in her red state this year, did say she had no issues with the GOP’s line of questioning over Jackson’s sentencing decisions in child porn cases.
“I think it’s a fair line of questioning if, in fact through, through her tenure on the Sentencing Commission or as a judge previously there were there were issues with that,” Murkowski said.
That leaves a small universe of other senators – including retiring Republicans who could be “yes” votes. But those retiring Republicans – Sens. Pat Toomey, Richard Shelby, Richard Burr and Roy Blunt – all were mum about Jackson when asked about her on Wednesday.
“I don’t think there’s anything wrong with asking questions about this important area of the law and this important area to society,” Blunt said, referring to the questions over her handling of child pornography cases.
Sen. Rob Portman, a retiring Ohio Republican, said he was not sold on Jackson.
“I have concerns,” Portman told CNN. “I have expressed those after meeting with her personally: (her) judicial philosophy … but also I have a specific concern about regulatory issues.”
“She is more on the liberal side on a lot of these issues,” Portman said.
Some Republicans have indicated they are still open to backing her, even though they opposed her for the lower court.
Sen. Shelley Moore Capito, a West Virginia Republican, said: “I’m watching it but I’m still open-minded.”
Sen. Ben Sasse, a Nebraska Republican who sits on the Senate Judiciary Committee, told CNN that Jackson “is an impressive person,” though he opposed her pick to the DC Circuit last year.
Sen. Mitt Romney, a Utah Republican who has broken with his party on high-profile issues, also is viewed by Democrats as a winnable vote. But Romney told CNN recently he voted against Jackson to the D.C. Circuit because he viewed her as “not in the mainstream of judicial thought,” even as he said he’s keeping an open mind now.
On Wednesday, Romney said he was open to backing her but would “review anything (the committee) thinks is important, and I’ll take a look at it myself and make that decision.”
For Graham’s part, he has had to reconcile his support for Jackson to sit on the second most important court in the country to his likely opposition for her ascension to the Supreme Court.
At Wednesday’s hearing, Graham railed on Jackson’s sentencing decisions of child pornographers and even criticized her as an “activist” for being overturned on an immigration ruling while serving as a district judge – all topics that he could have raised before supporting her for the DC Circuit.
“The bottom line is the difference between DC Circuit courts and Courts of Appeals, the Supreme Court, is the ability of a judge on the Supreme Court to make the law different than it is today, and I think that’s something everybody’s taking into consideration,” Graham said in the interview. “It’s a different game.”
Graham added that if Biden picked Childs, “I could have gotten her a lot of votes.”
Now, Graham said: “I think this is going to be really hard for Judge Brown,” he said, referring to Jackson.
CNN’s Lauren Fox, Ali Zaslav, Morgan Rimmer and Ted Barrett contributed to this report.
