South Carolina Republican Senator Lindsey Graham has said “I like politics, but I love the law.” And, true enough, more often than not Graham has been something of a judicial purist. He has now followed this infatuation in deciding to vote in favor of President Obama’s nominee, Solicitor General Elena Kagan to sit on the Supreme Court.
In a statement released earlier this week, Graham said, in part:
The Constitution puts a requirement on me, as a senator, to not replace my judgment for the President’s. I’m not supposed to think of the 100 reasons I would pick somebody different. 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 [Ms. Kagan] passed all those tests.
Are we taking the language of the Constitution that stood the test of time and putting a political standard in the place of a constitutional standard? Objectively speaking, things are changing, and they’re unnerving to me. The court is the most fragile of the three branches. So while it is our responsibility to challenge and scrutinize the court, it is also our obligation to honor elections, respect elections, and protect the court.
I view my role as a United States Senator in part by protecting the independence of the judiciary, and by making sure that hard-fought elections have meaning in terms of their results within our Constitution. At the end of the day, Ms. Kagan is not someone I would have chosen, but I think she will serve honorably.
Honestly, that’s some noble stuff. Strict adherence to constitutional duties is what we should expect from every civil servant, be they senator, representative, cabinet member, judge or president. “Should expect,” but seldom get. For this bit of nobility, Lindsey Graham deserves kudos.
Except . . .
The Constitution is a document built not just for the rule of law, but it was constructed on certain and specific principles, primary among them the assurance of personal liberties for all people. While it would be wonderful if judges at all levels themselves adhered to constitutional mandates as well as Senator Graham, the painful fact is that they do not. Far too many judges, predominantly those with a liberal bent, feel empowered not only to adjudicate, but to legislate from the bench. Judicial restraint – that is, limiting rulings to constitutional interpretation – is no longer practiced as designed by the Founders.
Should Senator Graham’s colleagues uphold the same standards of selection as does he, then not only would there not have been the Robert Bork debacle, but the heinous attempts to denigrate Clarence Thomas would not have occurred.
The unfortunate truth is that Democrats don’t play by the same rules and, therefore, Graham’s argument is empty. It’s not as if Elena Kagan isn’t the only “qualified” candidate in the United States. Were she to be so, then he would certainly be obligated to support her nomination. But, as others have pointed out, it’s not Lindsey Graham’s place to support the president’s nominees, no matter who the president may be or from what party.
Lindsey Graham was sent to Congress to represent the people of South Carolina. His representation is intended to reflect the will and principles of those who elected him. Elena Kagan does not share many of those principles and, therefore, would not represent the will of South Carolinians. To wit, Lindsey Graham should have rejected Ms. Kagan’s nomination in concurrence with his constitutional obligation to the South Carolina electorate.
By doing so, Graham would, indeed, have made sure that “hard-fought elections have meaning in terms of their results within our Constitution.”