by Mark Byrnes
Flip-flops are fairly common in politics, but this one is a doozy.
Eight years ago, shortly after joining the Senate, Lindsey Graham considered filing a lawsuit against the Senate to challenge the constitutionality of filibustering judicial nominees.
Last week, Graham voted to filibuster a judicial nominee.
Eight years ago, of course, there was a Republican president. So Graham, along with Georgia’s Saxby Chambliss, led “a charge to file a lawsuit against the very Senate they now serve in, challenging the constitutionality of Democratic filibusters of President Bush’s judicial nominees.” Roll Call reported:
“Lindsey Graham and I have talked seriously and extensively about this,” Chambliss said, noting that it would be some time before a final decision is made and the lawsuit actually filed. “We’re thinking through it, we’ve got people researching it.”
In 2005, Graham said that “if the filibuster becomes an institutional response where 40 senators driven by special interest groups declare war on nominees in the future, the consequence will be that the judiciary will be destroyed over time.”
Last week, Graham and 42 senators (41 of them Republicans) voted to filibuster President Obama’s nominee, Goodwin Liu. South Carolina’s other senator, Jim DeMint, who in 2005 said “denials of simple votes on judicial nominees” are “unconstitutional,” joined Graham in this “unconstitutional” vote.
This nominee has become a litmus test on the radical right. A website, Impeach Obama Campaign, has made much of this nominee, noting with outrage that “Liu has spent the last few years lecturing about his disdain for the U.S. Constitution. ‘[S]trict construction,’ he wrote in the Stanford Law Review, ‘[doesn't] make a lot of sense.’”
The constitutional originalists might be shocked to learn this, but you know who else thought that strict construction doesn’t make a lot of sense? Alexander Hamilton. In his 1791 argument for a national bank, Hamilton skewered the Jeffersonian case based on strict construction. Writing of the necessary and proper clause, Hamilton argues that “the whole turn of the clause containing it, indicates that it was the intent of the convention, by that clause, to give a liberal latitude to the exercise of the specified powers.” Somehow the posers who claim to venerate the Founders always seem to forget that.
The assertion that opposition to strict construction is somehow radical is laughable, so Liu’s opponents have take to citing Liu’s strong opposition to Justice Alito’s confirmation as justification for blocking an up-or-down vote. The New York Times reports that this is Graham’s excuse for his hypocrisy:
“These statements about Judge Alito and the decisions he’s rendered and his philosophy are designed to basically say that people who have the philosophy of Judge Alito are uncaring, hateful and really should be despised,” said Senator Lindsey Graham, Republican of South Carolina and one of the architects of the 2005 judicial compromise. “That is a bridge too far, because I share Judge Alito’s philosophy.”
And there Graham gives it away: he opposes the nominee because he disagrees with the nominee’s philosophy (and he thinks the nominee insulted his own philosophy). Does he expect Barack Obama to appoint judges who share his views? Elections have consequences, and Graham’s man McCain was decisively defeated in 2008.
Almost exactly six years ago, on May 24, 2005, Graham said: “we can treat our judicial nominees better, because if you institutionalize a filibuster, if every nominee is subject to having their life treated like these people have been treated, good men and women will not want to be judges; and that’d be a great loss for this country.”
Evidently Graham only considers it a great loss if Republican men and women don’t want to be judges. Or, perhaps, he just felt the heat from conservatives in South Carolina and decided he had to appease them with this vote. Either way, he’s shown that when it comes to judicial nominations, he has no principles, just political interests.
Mark Byrnes is an associate professor of history at Wofford College in Spartanburg, SC. He blogs at The Past Isn’t Past. Mark’s obsessive interest in politics goes back to watching the Watergate hearings as a child (seriously). You can follow him on Twitter at @byrnesms.