Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue—and tried to teach viewers a lesson—about the need to tamp down the bitter liberal–conservative battles that have poisoned judicial confirmations.
Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.
Graham had considerable success in both ventures—far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.
And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas—the day that a terrorist nearly succeeded in blowing up an airliner over Detroit— she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.
Graham launched the dialogue about partisanship in the confirmation process by reading into the record a letter endorsing Kagan from her friend and former Harvard Law School classmate Miguel Estrada, one of several conservative legal luminaries who have endorsed Kagan. “Elena possesses a formidable intellect, an exemplary temperament, and a rare ability to disagree with others without being disagreeable,” wrote the Washington-based appellate advocate. “If such a person … is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service.”
This was the same Miguel Estrada whose own nomination to be a federal appeals court judge, by President Bush, was stalled and filibustered to death by Senate Democrats amid ugly attacks by liberal partisans. Estrada finally withdrew in disgust in 2003.
Asked by Graham about Estrada, Kagan called him “a great lawyer and a great human being,” adding later that “he is qualified to sit as an appellate judge—he is qualified to sit as a Supreme Court justice.” When Graham asked Kagan to send him a letter saying the same, she agreed.
Graham admitted that it was only natural that a Democratic president would pick progressives such as Kagan for the Supreme Court—and that a Republican president would pick conservatives. Kagan agreed again, in the process acknowledging that “my political views are generally progressive.”
The message to Democrats, and to the country, was that Graham would strive to counteract partisan attacks by Republicans on well-qualified Democratic nominees—and that his Democratic colleagues should show the same consideration to the next GOP president’s nominees. On that point, Kagan didn’t quite say that she agreed. But she came close.
Then Graham switched gears, saying, “Let’s talk about the war.” He expressed pleasure, again, with Kagan’s prior statements that “we are at war with Al Qaeda and the Taliban,” and with a legal brief that she had approved as solicitor general opposing judicial review of the detention of suspected enemy combatants at the Bagram Air Base in Afghanistan. “Some of your supporters are going to be unnerved” by that brief, Graham observed. And “some of your critics will like what’s in there.”
Kagan carefully avoided saying whether her personal views agreed with the Obama positions that she has defended in court. But Graham pronounced himself satisfied that she did agree.
More to the point, the senator also brought up his own lonely efforts to make a deal with the Obama administration on bipartisan legislation, setting new policies such as periodic reviews to assess whether people detained indefinitely as enemy combatants are still dangerous. Would it be “desirable” for the president and Congress to work together on such legislation, Graham asked.
Kagan avoided saying what President Obama should do. After all, she was well aware that he has been skittish about working with Graham both because leftist groups have passionately attacked any thought of detention legislation and because Republicans might insert unacceptable provisions.
But Kagan did give Graham an answer that he liked. She stressed her own previous testimony that courts would and should be more likely to defer to a law passed by Congress and signed by the president than to a policy of the president alone.
All in all, Graham accomplished more on Tuesday than any other committee member. And it’s not hard to imagine some of the people watching on television saying to themselves “I like him. And I like her.”