Lindsey Graham's Unrequited Love

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.”



5 thoughts on “Lindsey Graham's Unrequited Love

  1. To understand Senator Graham’s decision to vote for Ms. Kagan requires you listen to what he said to the Judiciary Committee to explain his vote. Senator Graham was directly on point when he quoted from Alexander Hamilton: “Now, what was I talking about in terms of the Constitution? I’m going to read to you, if I can find it here, Federalist Number 76, Alexander Hamilton. He indicated that the Senate ‘should have a special and strong reason for the denial of confirmation.'”
    The fact that you disagree with Ms. Kagan is not a “special and strong reason” to deny her this office. I would not have hired her because I disagree with her philosophy and thought she failed the interview and has a thin resume, but that is not the constitutional threshold for advise and consent. It takes more than that to satisfy the standards the folks who wrote the Constitution put down.
    This is high-minded and frankly shows more research and understanding of the law and the constitution than most of those clowns on the committee. There is also the strategic motivation behind Senator Graham’s analysis.
    During the early Bush administration Democrats filibustered most of the judicial appointments. There was a threat by the Senate majority leader to change the rules of the Senate to outlaw the use of the filibuster on judicial appointments-the so-called “nuclear option.” Graham organized a Gang of 14 senators of both parties to declare they would no longer participate in partisan resistance to judicial appointments. These 14 essentially returned to the standard of the Federalist Papers. During the Bush years the Democrats held up their end of this bargain which is why we have Chief Justice Roberts and Justice Alito as well as dozens of other conservative judges on the various circuit courts and appeals courts.
    No doubt the Democrats who voted against their colleagues several years ago felt the wrath of the knuckleheads of the Democrat Party but they reached a smart deal. There will be no filibuster of Kagan. For those of us on the conservative side, Lindsey Graham’s compromise served us well when Bush was president. I think Senator Graham’s vote is keeping with the strict construction of the Constitution and that he is bound by honor to keep his promise just as his Democrat colleagues kept their promise in the Bush years. For him to do otherwise would be to dishonor himself.


    • Denying Kagan admittance to the Supreme Court does not deny constitutional adherence. As I said, she’s not the only qualified candidate available. I’m reminded of a scene from “Animal House” during the the parade at the end of the movie. There stands Kevin Bacon in ROTC uniform screaming that “ALL IS WELL!” while being trampled by the panicked crowd. Lindsey Graham can clear his throat with honorable intent, but the realities are that he’s the only one doing so.

      If the Federalist Papers are to be guidance, consider No. 62: “A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

      The “Gang of 14” was a failure.

      He is also honor-bound, and one could easily argue that this is primary, to fully represent the people of South Carolina.


  2. I agree with Garnet Spy: it is plain from Kagan’s record and rhetoric that she does not adhere to the Constitution nor the natural law principles–essentially, a respect for the fundamental dignity of man–it is based upon.

    This is more than enough reason to reject any candidate and fully within the concept of “advise and consent.”


  3. Anyone BUT Lindsay in ’12. I am tired of his weakness. He and John Mcain have appearently done all thier fighting!


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