If a SCOTUS vacancy opens up next year, how will Lindsey Graham walk back his promise to hold the seat open?


Just a question I’ve been thinking about today in light of two NYT stories that are closely related even though the authors of the two pieces don’t seem to realize it. One is about Lindsey Graham bowing to heavy pressure from Trump and his fans in right-wing media to finally use his power as Judiciary Committee chairman to investigate the Bidens. For weeks Graham held off on doing that, insisting that Judiciary wasn’t the right entity to start sniffing around Burisma and investigating whether undue influence was applied to Ukraine’s government by the Obama administration to protect the company as a favor to Hunter Biden. That’s a matter for the Foreign Relations Committee, Graham said, or for the DOJ. But that felt like a cop-out to Trumpers. Of what use is Graham as a toady if he won’t wield the power he holds to run interference for the president on impeachment? “Witch hunt” soundbites are great, but anyone can do that. Graham has a gavel. Why won’t he wield it? It’s like a golfer having a caddy who’s happy to tell him “nice drive” but who refuses to carry his bag of clubs for him.

So, finally, Graham caved and said he’d look into it. His friend Joe Biden was outraged but Graham likes being a senator and he knew that holding Trump off on this might imperil his chances at being reelected in South Carolina. So he picked up that bag of clubs and started walking.

Burisma is child’s play, though, compared to the pressure he would face as Judiciary chairman if a Supreme Court vacancy were to open up. After all, at the end of the day Trump and MAGA Nation don’t *really* need him to investigate the Bidens. There’s no chance the president will be removed from office by the Senate either way. But Trump doesn’t want merely to be acquitted on the Ukraine charges, he wants to be vindicated somehow. He wants Republicans to agree that his phone chat with Zelensky was a PERFECT CALL! and that there was certainly NO QUID PRO QUO! And, most of all, he’d like a scrap of evidence that his suspicions about the Bidens were well founded so that he can tell Pelosi and the media that not only did the Senate find him not guilty, he was right to push the Ukrainians on Burisma. Graham can get that for him, in theory. But whether he does so or not, it doesn’t ultimately matter to the outcome.

All of which is to say that Graham investigating the Bidens is relatively low stakes. A Supreme Court vacancy would be the very highest stakes. The Times has a story about that too today titled, “Would Republicans Follow Their Garland Rule for the Court in 2020?” — and amazingly, it never mentions that the current head of the Judiciary Committee, the body charged with holding confirmation hearings for Trump’s nominee, is already on record as saying that he will follow the Garland Rule next year. How did the paper forget this, from last October?

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The “Garland Rule” refers, of course, to McConnell’s decision not to consider Obama’s Supreme Court nominee, Merrick Garland, after Scalia’s seat opened up in early 2016. When the president and the Senate majority come from different parties, McConnell said at the time, and a vacancy occurs in a presidential election year, it’s only right to let the electorate break the stalemate and decide which party’s presidential candidate should make that appointment. By that logic, the Garland Rule *doesn’t* apply in 2020; the fact that the White House and the Senate are each controlled by the GOP means that Republicans get to fill the vacancy and that that’s consistent with the will of voters. Trump has said, in fact, that he’d expect to fill any vacancy that opens up in 2020 and McConnell has backed him up. More than once. The Garland Rule doesn’t apply.

…But that was not Lindsey Graham’s understanding, as you just saw. Graham’s view of the Garland Rule appears to be more straightforward than McConnell’s: It’s not a matter of whether one party controls the White House and the other controls the Senate, it’s a matter of pure timing. In an election year, if the vacancy occurs late enough (Graham’s cut-off date appears to be the start of the presidential primaries), then he believes Congress should defer to voters by holding the seat open.

With most Senate Republicans, it wouldn’t matter what their personal understanding of the Garland Rule is. McConnell’s going to put the nomination on the floor and they’re going to dutifully vote to confirm. But Graham isn’t any ol’ Senate Republican in this case. He’s the chairman of the Judiciary Committee, the body that vets nominees on the Senate’s behalf. If he objects to proceeding with the nomination, that’s a big deal. It wouldn’t derail the nomination — McConnell could still force a floor vote — but it would be miserable PR for the GOP, amid a media firestorm over their alleged double standard on confirming nominees during election years, to have none other than Lindsey Graham publicly opposed to doing so. Even the loyal MAGA toady from South Carolina draws the line on this one, the papers would say. It would make an already dubious decision reek of illegitimacy. (Apropos of nothing, this subject came up recently in conversation with pro-Trump family members and even they thought the GOP’s stance on Garland in 2016 logically meant they’d have to hold a new vacancy open if it came next year.)

On Earth 2, where Lindsey Graham cares about anything other than being reelected, an open Court seat next June, say, would be a wrenching political development. He’d have no choice but to keep his promise from 2018 and try to hold the seat open. If that meant roadblocking the nomination in committee and forcing McConnell to go over his head, then that’s what it would mean. The backlash in his Senate primary or even in the general election in South Carolina would be unpredictable. He could try to finesse it somehow — for instance, maybe he would go ahead and hold the confirmation hearings but insist on voting against confirmation to signal that he believes the voters should decide who gets to fill the seat. That might work out for him inasmuch his “no” vote might not prevent the nominee from being confirmed anyway, mitigating his betrayal of the president. But still, he’d be taking a major political risk.

Here on Earth 1, though, where being reelected is the only thing Graham cares about, it’s a mortal lock that he’ll come up with an excuse to reverse his 2018 pledge. What will his reasoning be? He could say, I guess, that he misunderstood the Garland Rule when he made his comments last year and that he now agrees with McConnell that it should only apply when the president and Senate majority come from different parties, but that would be weaselly and unpersuasive even for him. My bet is that he’d say he’s been radicalized by impeachment. If House Democrats are so contemptuous of the will of the electorate that they had to go ahead and try to remove the president less than a year before voters render their verdict on him, it’s only right that Republicans punish them for their contempt by going ahead and filling a SCOTUS vacancy. Graham was willing to meet them halfway by applying the Garland Rule consistently and deferring to the people — but now liberals have farked it all up by refusing to defer to the people themselves on the Ukraine business. He might even frame it as a matter of “due process.” If House Dems were unwilling to give Trump the process he was due in impeachment (or the process Graham thinks he was due, at least) then they don’t get the process they’re due under the Garland precedent by holding the seat open through the election.

That’s my prediction. We’ll revisit this post in a few months, perhaps. Meanwhile, a question: Would any Senate Republicans vote against a SCOTUS nominee next year on grounds that it’s late enough in the campaign that voters should be allowed to decide who makes the appointment? Don’t say Susan Collins. She’s normally squishy, I know, but the Times story today remembers that she was actually in favor of holding a vote on Garland. Collins would be behaving consistently by insisting on a vote for Trump’s new nominee as well. Romney’s always a wild card, but even Romney has limits on how much political capital he can squander back home in Utah. If he’s going to be a tough vote on impeachment and removal, he won’t want to risk undermining the party on SCOTUS as well. And why would he, knowing that McConnell will surely be able to get at least 50 votes from the caucus for confirmation, making Mitt’s opposition irrelevant? I think the vote would be pure party-line.

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