Bloomberg Law
Jan. 10, 2023, 9:45 AMUpdated: Jan. 10, 2023, 6:45 PM

Lindsey Graham’s Wild-Card Judge History Is Likely to Return (1)

Madison Alder
Madison Alder

Sen. Lindsey Graham, one of the most consistent GOP supporters of Biden judicial appointments, will bring experience and unpredictability to those nominations going forward as the top Senate Judiciary Committee Republican.

Graham is expected to become ranking member after Sen. Chuck Grassley (R-Iowa), who led Republicans on the panel last Congress, maxed out the number of years he could stay in that role under GOP committee assignment rules. Graham will serve alongside Sen. Dick Durbin (D-Ill.) who’s expected to again chair the committee.

The change will bring Graham back into the center of judicial nominations for the first time since he chaired the committee during the Trump era that saw a conservative reshaping of the judiciary, including three appointments to the Supreme Court.

Grassley was more critical of nominees in Biden’s first two years, particularly to circuit courts, while Graham provided pivotal support for the president’s picks in many instances. Graham did so, however, without taking an active role in questioning them, leaving some uncertainty about how he might approach the role of ranking member.

In fact, Graham’s most notable presence during judiciary hearings last Congress was his sharp criticism of Ketanji Brown Jackson’s nomination to the Supreme Court and advocacy for Michelle Childs, a judge from South Carolina Biden considered for the high court who was ultimately appointed to the US Court of Appeals for the D.C. Circuit.

“The only thing that you can say about him for sure is he’s very unpredictable,” said Russ Feingold, the former Wisconsin Democratic senator who served on the committee with Graham. Feingold is currently president of the progressive lawyer group the American Constitution Society.

Senate committee assignments for the new Congress have yet to be announced. A Senate leadership aide said assignments would be determined after Jan. 23, when lawmakers return from recess.

Deference to Presidents

Graham’s more deferential approach to judicial nominations, no matter who is president, sets him apart from colleagues in the judicial confirmation wars that have grown increasingly partisan under recent administrations.

Graham demonstrated that deference during Biden’s first two years by providing sometimes pivotal support for nominees in committee. The panel was evenly split between Republicans and Democrats last Congress and a party-line deadlock could slow a nomination by adding an additional vote.

He has also frequently voted to confirm Biden judicial nominees, supporting roughly 78% of lower court selections, according to a Bloomberg Law analysis. Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) are also top GOP supporters, voting to confirm roughly 90% and 78%, respectively.

Although he voted against Jackson, Graham had previously voted to confirm both of President Barack Obama’s Supreme Court nominees, Sonia Sotomayor and Elena Kagan, at a time when such cross-party support was less unusual.

“He’s conservative, but he has these bipartisan tendencies. He’s just one of the more interesting senators I think in that he can’t properly be defined by partisanship,” said Jessica Schoenherr, an assistant professor of political science at the University of South Carolina who has studied the confirmation process.

A Graham spokesman confirmed the senator is expected to be ranking member, but didn’t comment on how he would approach the new role.

Nominations History

Graham’s history with nominations goes back before he led the committee and even before his votes for Kagan and Sotomayor.

In 2005, he was part of a bipartisan coalition of 14 senators who sought to make a deal over use of the filibuster in judicial nominations. The group, known as the “gang of 14” agreed that Democrats wouldn’t filibuster nominees and Republicans wouldn’t use the “nuclear option” to prevent filibustering judicial selections.

The norm eventually fell. Democrats got rid of the filibuster for judicial nominations in 2013 amid Republican opposition to Obama judicial nominees, and Republicans eliminated the filibuster on Supreme Court nominations under Trump.

Despite the general deference he’s had over his career, Graham struck a much less deferential tone during Jackson’s confirmation hearings. He criticized liberal dark money advocacy on behalf of her nomination, echoing Democratic arguments directed at Republicans.

“Every group that wants to pack the court, that believes this court is a bunch of right wing nuts who are going to destroy America, that consider the Constitution trash, all wanted you picked,” Graham said to Jackson at her hearing.

Graham had earlier voiced support for Childs to get the nomination. Childs is from Graham’s home state of South Carolina and was also supported by Rep. Jim Clyburn (D-S.C.).

Graham ultimately voted against Jackson, despite having voted to elevate her to the D.C. Circuit at the beginning of the Biden administration. A month later, Graham appeared at Childs’ confirmation hearing for a seat on the same court to introduce her. He underscored her bipartisan support.

Setting the Tone

Graham’s opposition to Jackson isn’t a perfect proxy for how he’d oppose lower court nominees because the Supreme Court nominations process, which attracts more public attention, is a different venue for senators.

At lower court hearings, “there’s less opportunity to kind of settle political scores, which is very much what Lindsey Graham was doing during the Jackson hearings,” said Schoenherr, who has studied how senators perform at confirmation hearings.

When Graham has opposed Biden lower court nominees, he hasn’t been present at committee votes to provide reasoning.

Biden picks Graham has opposed who are still pending include First Circuit nominee Julie Rikelman, who represented the abortion clinic in the Supreme Court case that struck down Roe v. Wade; Southern District of New York nominee Dale Ho, an ACLU attorney; and Eleventh Circuit nominee Nancy Abudu, a lawyer for the Southern Poverty Law Center.

Graham’s vote will be less pivotal this Congress as Democrats are expected to have at least one more member than Republicans.

Some nomination watchers believe Graham’s tone could change slightly as the top Republican on the panel.

After years of deference to Democrats “perhaps his hope that he was creating goodwill has run out,” said Gregg Nunziata, a former general counsel to Sen. Marco Rubio (R-Fla.) and Judiciary Committee chief nominations counsel while Arlen Specter was chair.

Graham also has more of an obligation as ranking member to represent his party’s views, Nunziata said. “I would expect him to largely reflect the view of Republicans on Biden’s judicial nominations,” he said.

But a history of working collaboratively with Durbin on issues like immigration will likely benefit the process, especially as Biden looks to fill vacancies in Republican-led states.

“That’s a positive indicator that the committee could effectively function to move nominees along, particularly nominees who are not controversial on ideological grounds,” Nunziata said.

—With assistance by Zach C. Cohen

(Updates with Graham voting percentage.)

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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