The list of Republicans willing to support President Joe Biden’s forthcoming nominee to the Supreme Court “is longer than you would initially imagine," the Senate's second-ranking Democrat recently teased to reporters.
Illinois Sen. Dick Durbin declined to name names. But it’s clear that Sen. Lindsey Graham R-S.C., is near the top of the list.
Graham, who tethered himself to former President Donald Trump, is among a handful of Republicans declaring their willingness to break party lines and vote for the yet-to-be-announced White House choice to replace retiring Justice Stephen Breyer.
Whether Graham or any Republican end up backing Biden's eventual nominee will be a new test for the president's long stated and rarely achieved ambitions to see Washington embrace a more bipartisan approach after the bitterness of the Trump era.
Democrats say obtaining a bipartisan vote is a top priority during the upcoming confirmation battle. “It will be great for the Senate. It will be great for the Supreme Court," Durbin said after a White House meeting Thursday. “I hope we can achieve that goal.”
That effort will make Graham a senator to watch.
Whether Democrats can win Graham’s vote — and that of other Republicans such as Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — remains to be seen. Enduring bitterness over the way Republicans steamrolled their way to a Supreme Court majority under Trump is still a dividing line.
Graham has at times signaling a willingness to partner initially with Democrats, only to retreat to a partisan corner.
Graham led efforts in the Senate to defend Brett Kavanaugh, a Trump nominee for the high court, from accusations of sexual assault, and it was Graham who brazenly abandoned a promise to refrain from confirming a justice in a presidential election year. As chairman of the Senate Judiciary Committee, he helped to seat Amy Coney Barrett on the court just days before Biden’s election win in November 2020.
But Graham also has a history of working with Democrats and has long said lawmakers should show deference to a president’s picks. He was the only Republican on the committee to vote for two of President Barack Obama’s Supreme Court nominees. Graham also has voted against only a handful of Biden's judicial nominees while supporting about 30.
“I’m playing the game different than everybody else,” Graham told The Associated Press in explaining his votes.
While some in the GOP have mocked Biden’s promise to nominate a Black woman, a historic first, Graham was quick to defend it. “Put me in the camp of making sure the court and other institutions look like America,” he said.
But there’s a catch. Graham wants the choice to be a fellow South Carolinian, U.S. District Judge Michelle Childs, and has said his vote will be “much more problematic” if it isn’t her. He called Childs someone “I can see myself supporting — if she does well here.”
The White House says Childs, who had been nominated for a federal appeals court at the time Breyer made his retirement announcement, is under consideration even as some liberal advocacy groups and labor unions question her record.
While Durbin has not endorsed a specific candidate, he said he appreciates Graham’s strategy. “Starting off with one or two Republican votes is a good start for any nominee,” he said, adding that “Lindsey is and will always be an independent.”
Part of Graham’s pitch on Childs is that — unlike all the current Supreme Court justices other than Barrett — she didn’t go to an Ivy League school. Matt Moore, a GOP strategist who served as a consultant for Graham in his 2020 campaign, said promoting Childs also appeals to voters back home.
“There’s a certain amount of state pride seeing someone from South Carolina considered for the Supreme Court,” Moore said.
While Graham has supported many Democratic judicial nominees, he also has hewed to the party line in two critical moments — the first in blocking now-Attorney General Merrick Garland from even getting a hearing when he was nominated for the Supreme Court during the final year of Barack Obama’s presidency. Then, four years later, he did an an about-face as chairman of the Judiciary Committee and shepherded Barrett’s nomination through just days before the presidential election.
Those stands helped secure a 6-3 conservative majority on the high court, an ideological balance of power that will remain in place even after Breyer’s replacement is confirmed.
But it was Graham’s defense of Kavanaugh that stands as perhaps the senator’s defining moment. Graham erupted at Democrats during a hearing where Christine Blasey Ford accused Kavanaugh of sexually assaulting her in high school. Kavanaugh denied the charges.
Anger in his voice, Graham upbraided Democrats for their treatment of Kavanaugh in a viral moment that was celebrated by conservatives.
“Boy, you all want power,” Graham said, turning to the Democrats on the committee. “God, I hope you never get it. ... I hate to say it because these have been my friends.”
Now, there are signs senators want a détente. Mindful of the vote to come once Biden makes his pick, Democrats are reluctant to focus on the times that Graham has angered them.
“I think he’s looking at the merits of these individuals and their qualifications, which is to be commended,” said Sen. Richard Blumenthal, D-Conn., who serves with Graham on the committee.
Democratic leaders also praised Graham this past week for his work on a bill ending forced arbitration for sexual assault and sexual harassment claims in the workplace. Durbin called him a “vital partner” on it. Senate Majority Leader Chuck Schumer, D-N.Y., was even more effusive.
“When he gets behind something, it gets done,” Schumer said. “So I want him behind more things with us in the future.”
Still, some won’t be surprised if Graham ends up opposing Biden’s choice.
Hawaii Sen. Mazie Hirono, a Democrat on the Judiciary Committee who has worked with Graham in the past, said "pretty much whatever Lindsey does, the back and forth and all that, no longer shocks me, which is too bad. Because I think Lindsey is a far, far better person than these kinds of flip flops indicate.”
Graham was first elected to the Senate in 2002, about a decade after the Senate had voted 96-3 for the liberal Ruth Bader Ginsburg for the Supreme Court, and about 16 years after the Senate voted 98-0 for the conservative Antonin Scalia. Graham said the overwhelming confirmation of ideological opposites shows what has been lost.
“One is very conservative, the other is very liberal, but they were clearly qualified,” Graham said. “That’s the way it used to be. Now, it’s all about tribal politics and people are worried about primaries.”
