Graham to Support Kagan

Jul 20, 2010 — New York Times

By Sheryl Gay Stolberg

Stephen Crowley/The New York Times Senator John Cornyn, Republican of Texas, left, looked on as Senator Dick Durbin, Democrat of Illinois, spoke with Senator Lindsey Graham, Republican of South Carolina, during a Senate Judiciary Committee hearing on Tuesday.

President Obama’s nominee for a vacancy on the Supreme Court, Solicitor General Elena Kagan, was endorsed by the Senate Judiciary Committee in a 13-6 vote on Tuesday.

Ms. Kagan now has at least one Republican vote for confirmation to the Supreme Court: that of Senator Lindsey Graham of South Carolina, who said that she was not someone he would have chosen “but the person who did choose – President Obama – I think chose wisely.’’

In the committee vote, Mr. Graham broke party ranks to join the committee’s 12 Democrats in voting in her favor.

The nomination now goes to the full Senate, where confirmation is expected in the next few days.

Mr. Graham’s announcement came as the Senate Judiciary Committee took up the Kagan nomination; a vote is expected later in the day. His decision was not a surprise, given that he supported Justice Sonia Sotomayor last year. But his lengthy speech in support of her sparked debate over the Senate’s approach to judicial confirmations and helped reinforce his image as a maverick in the Senate, where he has been the rare Republican willing to reach across the aisle to forge consensus with the Obama administration on issues like immigration, energy and the war on terror. In his argument, he took Mr. Obama to task for taking too partisan an approach.

“No one spent more time trying to beat President Obama than I did except maybe Senator McCain,’’ Mr. Graham said Tuesday, referring to his work in 2008 trying to elect Senator John McCain of Arizona, Mr. Obama’s Republican rival. “I missed my own election – I voted absentee. But I understood – we lost, President Obama won. The Constitution in my view puts a requirement on me not to replace my judgment for his.’’

Mr. Graham said there were “100 reasons’’ he could vote against Ms. Kagan if he based his vote on her philosophy, which is at odds with his. But he said she set a time-honored standard for judicial nominees: whether they are qualified and of good character.

Mr. Obama himself adopted a different standard; as a senator, he said it was permissible to vote against a nominee based on judicial philosophy, not just qualifications. Mr. Graham said that approach is undermining the process of confirming judicial nominees, by making it more partisan.

“Something’s changing when it comes to the advise and consent clause,’’ he said. “Senator Obama was part of the problem, not part of the solution.’’

At least one Democrat, Senator Richard J. Durbin of Illinois, the number two Democrat in the Senate, said Mr. Graham’s remarks had made him rethink is own approach to judicial nominations — including the decision by Democrats several years ago to prevent Miguel Estrada, a prominent conservative lawyer, from getting a hearing before the committee when President George W. Bush nominated Mr. Estrada to the federal appeals court.

Mr. Estrada, a close friend of Ms. Kagan, has spoken strongly in support of her, and she has in turn spoken in support of him. Senator Durbin said Tuesday he now believes “Miguel Estrada deserves a day in court or a day before the commitee.”

Of Senator Graham, Senator Durbin said, “I reflected on some of the things that I have said and how I have voted in the past, and thought that perhaps his statement suggested a better course.”