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If Kagan's So Scary, How Come Lindsey Graham Supports Her Confirmation? | The Nation

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John Nichols

John Nichols

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If Kagan's So Scary, How Come Lindsey Graham Supports Her Confirmation?

I do not happen to subscribe to the view that South Carolina Senator Lindsey Graham is a "moderate" Republican.

For the most part, he casts a consistent right-wing vote -- and on some national defense and civil liberties issues, he is to the right of the right.

But, if Graham is not moderate ideologically, he is at least moderate in his partisanship.

That explains his break with fellow Republicans on the Senate Judiciary Committee to vote in favor of confirming Elena Kagan as the replacement for returning Supreme Court Justice John Paul Stevens.

"I believe this election has consequences," Graham explained Tuesday morning, in a dramatic announcement of his decision. " And this president chose someone who is qualified to serve on this court and understands the difference between being a liberal judge and a politician. At the end of the day, it wasn't a hard decision ... She would not have been someone I would have chosen, but the person who did choose, President Obama, chose wisely."

Graham even suggested that: "I think there's a good reason for a conservative to vote yes."

His fellow conservatives disagreed. But that did not make Graham's vote any less consequential, or worthy of note.

Ultimately, the committee split 13-6 on the question of whether to endorse President Obama's nomination of his solicitor general to the high-court bench -- with all the Democrats and Graham on the "yes" side, and all the other Republicans positioning as the party of "no."

That was not unexpected. Committee Democrats had for the most part offered indications of their support for Kagan -- generally enthusiastically, even if Pennsylvania Senator Arlen Specter grumbled a bit (as he always and appropriately does) about the nominee's lawyerly responses to questions posed by the assembled senators. And Republicans -- including Graham -- had evidenced discomfort with her during hearings on the nomination.

So the only real news Tuesfday was Graham's decision to vote for a nominee his party -- and its activist base -- would prefer to keep off the court.

Why did he do it? Graham offered a credibly thoughful explanation.

"No one spent more time trying to beat President Obama than I did, except maybe Senator McCain," Graham explained. "But I understood we lost. President Obama won and I've got a lot of opportunity to disagree with him. But the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently, or pick a fight with Miss Kagan. It puts upon me a standard that stood the test of time, is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she's passed all those tests."

Graham's statement suggested that the efforts made by the White House to generate letters of support for Kagan's nomination from conservative jurists had paid off. In particular, Graham noted the strong support Obama's nominee got from Miguel Estrada -- a law-school seatmate of Kagan who, like her, was a failed nominee to the U.S. Court of Appeals for the D.C. Circuit.

"When it comes time to evaluate people, I tend to listen to what people who have known the nominee longer than I have, what they say. And (it's) particularly impressive when a conservative can say something good about a liberal," the South Carolina Republican explained. "That's being lost in this country a bit. And it's vice versa but Miguel Estrada's letter just really hit me hard. He said, 'If such a person who has demonstrated great intellect, high accomplishment and upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.' Well, I'm not so sure we're there yet and I hope we never get there but that's something we should be mindful of. That's a good caution from Miguel Estrada about the Senate and where we're going and where the nation is going when confirming judges."

Graham's vote was not technically necessary to advance Kagan's nomination on the committee or in a Senate where Democrats hold a solid majority of seats. But it was important all the same, as the South Carolina conservative's vote allows the White House to refer to "bipartisan" support for the nomination and may well break loose some votes from Republicans who are more frequently referred to as "moderates" -- such as Mainer Senators Olympia Snowe and Susan Collins and Massachusetts Senator Scott Brown.

The bottom line: Despite some campaigning by conservative publications and talk-radio hosts for an all-out effort to block Kagan, Graham's vote Tuesday all but assures that she will be confirmed with ease.

That won't win him any points with hard-core conservatives -- who were already talking about mounting a primary challenge to the South Carolinian in 2014. Graham consultant Richard Quinn claims there is no reason to worry because: "He's a thinking person's conservative. I expect him to do well among voters with IQ's in triple digits." But Quinn is paid to say things like that. South Carolina Republican run-off voters just rejected a conservative congresman (Bob Inglis) who deviated from party orthodoxy and dared to suggest his party might want to take cues from someone other than Glenn Beck. So it is fair to say that Graham's vote for Kagan (like his previous vote for Justice Sonia Sotomayor) was a courageous one.

But it should count for something with members of both parties who "understands the difference between being a judge and a politician "understands the difference between being a judge and a politician."

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