It is a turbulent time for the federal judiciary. Politicians from both sides of the aisle have attacked judges at all levels and questioned their motives. The president has gone after lower court judges for ruling against his administration and his personal business interests. Commentators have publicly decried the Supreme Court as “evil” and cynically labeled the third branch an “intensely partisan institution that pretends otherwise.”
Likewise, the nomination process has become chaotic and hyperpartisan. The confirmation of Justice Brett Kavanaugh is the latest example of its decline. Even now, Senate tensions remain high and could again erupt if an unplanned vacancy emerges on the Supreme Court. These tumults have left lasting governance scars. Confidence in the Supreme Court is down, and calls for radical reforms, such as court packing, have grown.
In this era of acrimony and distrust of the third branch, Lindsey Grahambegan his new tenure as chairman of the Senate Judiciary Committee. Graham will lead the committee in considering judicial nominations by the president and any legislation touching on the federal judiciary. His record as a bipartisan dealmaker and steadfast supporter of the president has caught the attention of court watchers. Will he oversee two years of fast tracked judges and partisan votes, or will he conduct committee business with an eye toward reinstating bipartisan faith in the federal courts? Can Graham put the toxic political genie back in the bottle?
Thus far, his words and deeds have been promising. Importantly, Graham recognizes the underlying problem that there is an attempt, by both the left and the right, to transform the federal courts into blatantly partisan institutions. In a recent speech, Graham acknowledged that the country is in a “dark period” and warned that the politicization of the courts is “ever increasing and eventually is going to hurt the judiciary.” He declared that he would follow historical precedent holding that home state senators may veto the nomination of district court judges but not circuit judges, thus pushing back on political pressure to abandon the tradition entirely.
Some Senate Democrats have protested, noting that former committee chairman Patrick Leahy observed the “blue slip” tradition for both district court nominations and circuit court nominations. In response, Graham told Senate Democrats that he will negotiate privately with them on circuit court nominations to seek a compromise with the president. Democrats will likely wait and see if the offer still stands should the opportunity arise.
Graham also has set his sights on restoring the judicial filibuster. In 2013, Senate Majority Leader Harry Reid at the time had invoked the “nuclear option,” removing the threshold of 60 votes for lower court nominees. Four years later, Senate Majority Leader Mitch McConnell took the very same action for Supreme Court nominees. As a member of the former “Gang of 14,” Graham has raised his fears that Senate partisanship could end the filibuster for all legislation instead of just judicial nominations.
Now that he is committee chairman, Graham has offered political support for restoring the judicial filibuster after the 2020 election, reasoning that it would be a fair restarting point. After all, he observed, “Nobody knows who is going to win.” Graham has also lamented the end of implementing the “qualifications test” for judicial nominees. He has noted that qualified conservative nominations and liberal nominations at one time could “sail through” the Senate. For example, Justice Antonin Scalia and Justice Ruth Bader Ginsburg each received more than 90 votes in their confirmations.
Graham has also reminded us that during the last administration, he voted to confirm Justice Sonia Sotomayor and Justice Elena Kagan not because he agreed with their legal views, but because they were indeed qualified to be Supreme Court justices. Democrats, however, remain dubious. They contend that they are given insufficient time to properly vet nominations. Moreover, they note that the Republican push to limit debate on certain nominations, including those for district court judges, demonstrates that any efforts to depoliticize the confirmation process is simply lip service.
It remains to be seen whether Graham can put the political genie back in the bottle. The politicization of the courts has been rising in our nation for decades, a problem caused not least by the tendency of the courts to take up divisive issues that should be settled by Congress. Until recent years, however, the committee was able to operate in a far more civil bipartisan manner. Graham has the opportunity to lead by example and remind his colleagues and the rest of us that the courts must remain above politics.
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