Graham’s opening statement on Kagan

I enjoyed listening to Lindsey Graham’s opening remarks at the Elena Kagan nomination hearings.

Folks, this is how an honest, good-faith member of the opposition — charter member of the Gang of 14 — approaches something of this importance.

And if you don’t feel like watching the video, here’s a transcript:

Senate Judiciary Committee Hearings on Elena Kagan
Opening Statement from U.S. Senator Lindsey Graham (R-South Carolina)
June 28, 2010
Thank you, Mr. Chairman.
Congratulations. I think it will be a good couple of days. I hope you somewhat enjoy it, and I think you will.
Like everyone else, I would like to acknowledge the passing of Senator Byrd. He was a worthy ally and a very good opponent when it came to the Senate. My association with Senator Byrd — during the Gang of 14, I learned a lot about the Constitution from him.
And as all of our colleagues remember, just a few years ago, we had a real — real conflict in the Senate about filibustering judicial nominees. And it was Senator Byrd and a few other senators who came up with the “extraordinary circumstances” test that would say that filibusters should only be used in extraordinary circumstances because elections have consequences. And Senator Byrd was one of the chief authors of the language defining what an “extraordinary circumstance” was.
I just want to acknowledge his passing is going to be loss to the Senate. And the thing that we all need to remember about Senator Byrd is that all of us are choosing to judge him by his complete career. And history will judge him by his complete career, not one moment in time, and that’s probably a good example for all of us to follow when it comes to each other and to nominees.
Now, you are the best example I can think of why hearings should be probative and meaningful. You come with no judicial record, but you’re not the first person to come before the committee without having been a judge. But it does, I think, require us and you to provide us a little insight as to what kind of judge you would be. You have very little private practice, one year as solicitor general, and a lot of my colleagues on this side have talked about some of the positions you’ve taken that I think are a bit disturbing.
But I’d like to acknowledge some of the things you have done as Solicitor General that I thought were very good. You opposed applying habeas rights to Bagram detainees. You supported the idea that a terror suspect could be charged with material support of terrorism under the statute and that was consistent with the law of wars history.
So there are things you have done as solicitor general that I think will merit praise and I will certainly, from my point of view, give you a chance to discuss those.
As dean of Harvard Law School, did you two things. You hired some conservatives, which is a good thing, and you opposed military recruitment, which I thought was inappropriate, but we will have a discussion about what all that really does mean. It’s a good example of what you bring to this hearing — a little of this and a little of that.
Now what do we know? We know you are very smart. You have a strong academic background. You got bipartisan support. The letter from Miguel Estrada is a humbling letter and I’m sure it will be mentioned throughout the hearings, but it says a lot about him. It says a lot about you that he would write that letter.
Ken Starr and Ted Olson have suggested to the committee that you are a qualified nominee. There’s no to doubt in my mind that you are a liberal person. That applies to most of the people on the other side, and I respect them and I respect you. I’m a conservative person. And you would expect a conservative president to nominate a conservative person who did not work in the Clinton Administration.
So the fact that you’ve embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that’s just America. It’s OK to be liberal. It’s OK to be conservative. But when it comes time to be a judge, you’ve got to make sure you understand the limits that that position places on any agenda, liberal or conservative.
Your judicial hero is an interesting guy. You’re going to have a lot of explaining to do to me about why you picked Judge Barak as your hero because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I’m sure you’ll have good answers and I look forward to that discussion.
On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country’s facing; about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting war. So you, in my view, have a potential teaching opportunity, even though you have never been a judge, because you have represented this country as Solicitor General at a time of war.
The one thing I can say without (sic) certainty is I don’t expect your nomination to change the balance of power. After this hearing’s over, I hope American — the American people will understand that elections do matter. What did I expect from President Obama? Just about what I’m getting. And there are a lot of people who are surprised. Well, you shouldn’t have been, if you were listening.
So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge. That, to me, is your challenge. I think most people would consider you qualified because you’ve done a lot in your life worthy of praise.
But it will be incumbent upon you to convince me and others, particularly your fellow citizens, that whatever activities you’ve engaged in politically and whatever advice you’ve given to President Clinton or Justice Marshall, that you understand that you will be your own person, that you will be standing in different shoes, where it will be your decision to make, not trying to channel what they thought. And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it.
The question is: Can you make sure that you’re not channeling your political agenda, your political leanings when it comes time to render decisions?
At the end of the day, I think the qualification test will be met. Whether or not activism can be parked is up to you. And I look at this confirmation process as a way to recognize that elections have consequences and the Senate has an independent obligation on behalf of the people of this country to put you under scrutiny, firm and fair, respectful and sometimes contentious.
Good luck. Be as candid as possible. And it’s OK to disagree with us up here. Thank you.

32 thoughts on “Graham’s opening statement on Kagan

  1. Matt

    He’s my second favorite U.S. Senator from South Carolina, but I too enjoyed listening to Lindsey Graham’s opening statement today. I have heard Graham’s statements/questioning for the past four nominees. I like a lot of what he says, but I also seem to like his rhetorical style in these proceedings. It seems very conversational and sometimes matter-of-fact.

  2. bud

    Here we go with that activism crap again. I don’t remember any condescending scolding when the conservative justices act to change state and local laws. Just ask the folks in Chicago and DC how they like being told what to do when all they want to do is keep their neighborhoods a bit safer from the gun toting thugs but 5 ultra-conservative justices tell them no. Really Lindsey give me a break.

  3. Michael P.

    I’ve always said Lindsey would be much more honest by putting a “D” behind his name than an “R”.

  4. Phillip

    re his comment about “fighting crime vs. fighting war”…those questions and answers will indeed be interesting, because it’s going to be a fundamental question for the duration of our country’s history, since it appears that (by our definition of being at war), we are going to be at war for the rest of our lives, certainly, and for our children’s and grandchildren’s lives. Permanent war.

  5. Kathryn Fenner

    @Matt–Isn’t it nice to hear a courteous, civil tone?!
    Lindsey’s my favorite SC Senator!

  6. bud

    So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge.

    Now how is this a “civil tone”. Come on folks, Lindsey is a wolf in sheep’s clothing? Sounds very condescending to me. He’s far more dangerous than the clearly deranged DeMint. Everybody knows how insane he is. Dems are too quick to let their guard down.

  7. Phillip

    @ Michael P: indeed, who needs the GOP to be a “big tent”, when it can be a tiny narrow ragged shredded piece of a Hefty bag that need only be big enough to contain the “old intolerant, gun-toting, immigrant-bashing, mainly southern right which sees any form of co-operation as treachery, even blasphemy” as The Economist recently put it so eloquently.

  8. Brad

    Bud, that seems pretty civil to me. Is it that you’re bothered by the informality of “park it?” Seems pretty mild and polite to me. As for what it says, it’s a perfectly reasonable expectation. Whatever your political ideology, you need to park it at the door of the Court.

  9. Brad

    And Kathryn, he’s not only my favorite SC senator, but my favorite US senator. Although he may be sort of tied with Lieberman and McCain.

  10. Brad

    No, Burl — there’s no reason to say that. Sure, Lindsey could decide for his own reasons that she’s not suitable. (And if he does, he should be free to do that if that’s what his conscience dictates. He shouldn’t have to vote for her just to PROVE he’s “independent-minded.”) But if he truly believes she’s qualified, he’ll vote for her the same as he did for Sotomayor.

  11. Brad

    If there’s anyone in the Senate who is truly sitting there in good faith waiting to make up his mind based on the proceedings, it’s Lindsey Graham. I really don’t expect that from any other Republican, or from any Democrat. Although someone else could surprise me.

  12. Kathryn Fenner

    @Brad–I don’t have a favorite Senator since Teddy died. Biden was pretty cool, actually–I guess I’m an Old School Senate person.

  13. scout

    I gotta admit, I did not vote for Lindsey the very first time around, but he has totally earned my respect many times over. Somehow during that first election, I did get duped to vote for Sanford. Obviously I had it all backward then. Live and learn.

  14. bud

    Graham has nothing to gain by opposing her. He wants to keep his phony “good faith” bonafides in tact so his treachery on some other issue will be seen as a good faith disagreement by a reasonable senator. I don’t like Graham one iota. He’s very smart yet at the same time he’s evil to the core. Give me someone like stupid ole Demint any day.

  15. Brad

    Burl, I hope for such honesty from others. But if I only get it from one senator, I believe that senator would be Lindsey.

    And Bud, statements such as yours are what has corroded our politics to the point of dysfunction. So basically you’re saying that there is NOTHING Lindsey Graham can ever do to earn your respect. If he does something you LIKE, it is by definition a ruse. And then, of course, if he honestly disagrees with you, then he’s

    That kind of attitude is just destructive in the extreme.

  16. bud

    Let me get this straight. If I don’t like someone because of his politics I’m being “destructive in the extreme”. Yet you can rant and rave about someone like John Kerry or Mark Sanford and it’s just expressing an honest opinion. Give me a break.

  17. Brad

    My point is that you don’t give him any kind of a chance. If he disagrees with you, he’s a jerk. If he agrees with you, he’s a devious jerk.

    Not giving other people a chance, even to agree with you, is enormously destructive. There is no way we can have a decent society that way, a place where there is at least some hope of working together to improve things.

    That is COMPLETELY different from offering ordinary criticism. When John Kerry agrees with me, I agree with him. And that’s most of the time, actually. I mean this is a guy who was teamed with Lindsey and my man Joe on an Energy Party platform before Lindsey pulled out, so in point of fact I feel better about Kerry than I do about Graham on that issue.

    And when Mark Sanford agrees with me, I praise him for it. It’s why I endorsed the guy.

  18. Doug Ross


    Brad also likes “representative democracy” except when Mark Sanford does the job he was twice elected to do. It’s a “nuanced” position that we common folk just can’t seem to get.

  19. bud

    Brad, have you not seen Senator Graham at some of these conservative town hall meetings or listened to him on Keven Cohen’s radio show? He goes on these rants about how conservative he is. And that’s true, he is very conservative. He has taken a few positions on issues that are not over the top, like the SCOTUS nominees. But at the end of the day his politics don’t conform well with mine. It’s easy to be cynical when it comes to politicians. I suggest his relatively moderate position on the SCOTUS nominees may be a long-term political strategy rather than a genuine heart-felt belief. Even if that is so it’s a mighty small issue where conservatives can’t win anyway. His politics for the most part are very, very dangerous to the country. (healthcare, Iraq, stimulus to name 3).

  20. Brad

    No, Doug, it’s not nuanced. It’s very clear. I am always very clear about my criticism of Mark Sanford, and why it matters to this state. You just don’t like it.

    Just now, I was very clear about the difference between that sort of criticism and the “you can’t ever win” approach that Bud took earlier on Graham.

    Bud, he IS conservative, and he is elected with the votes of conservative people. So, given that, would you rather have a conservative who sees himself as being at war with anyone who dares to be a moderate and wishes to weed any kind of reasonableness out of his party, or do you want someone who actually works and strains and takes great political risks to work with people who are less conservative than he to achieve common goals?

    And conservatives — REAL conservatives, not these “lay waste to all” extremists — are NOT “very dangerous to the country.” Which is another place where you and I disagree, but that’s a separate discussion.

    You suggest that you see “a long-term political strategy” in his approach to judicial nominees. You bet. And that’s the great thing about this. Lindsey and 13 other senators decided awhile back that the two political extremes were undermining the judiciary with their constant warring with each other over the bench. So he resolved to act henceforth in the following ways:
    — To be very clear about what he wants to see in a nominee, and not be shy about it.
    — To RESPECT the role of the executive in choosing nominees of the president’s preference.
    — To vet those nominees according to standards of competence and intellectual honesty, not ideology.
    — To confirm those nominees unless there is something found in the process that would mean confirming them would do significant harm to the constitutional application of the law.

    This involves an intellectual process that is ESSENTIAL to the proper functioning of our deliberative process within the context of checks and balances. It’s the way you approach people when you value your own values, but respect differences. It’s the way you conduct yourself when you’re dealing in good faith with other people.

    He believes — rightly — that senators on both sides of the aisle should take this approach. That’s hardly likely in the present environment, but rather than rant and rave against it, he chooses to do the right thing himself, and hope others will eventually follow his example. But whether they do or not, at least HE is doing the right thing.

    That takes a great deal of integrity, and even courage, to run against the grain of both extremes in order to act like a reasonable human being.

    He deserves praise for it, so I’m happy to applaud.

  21. Phillip

    Hard to think of many Senators, on either side of the aisle, worthy of great admiration. I guess my favorites would be Dorgan, Feingold, and I like Amy Klobuchar a lot. On the GOP side I respect Lugar, who of course was one of the first on the GOP side to work together with Senator Obama on arms proliferation issues.

    Bud, though I disagree with him on most things as you do, I feel that Graham “gets it” just enough in some areas to set him apart from many in his party. You gotta cut the guy some slack, it’s hard to be a Republican these days and not be a total right-wingnut. LG has to throw the base just enough red meat to keep them at bay. I mean, look at Michael P’s comment above, he thinks Lindsay’s a Democrat, for goodness’ sakes.

  22. Brad

    Yes, it will. Since he didn’t vote for Sotomayor, it will be interesting to see if he passes up another opportunity to demonstrate the principle that he and Graham have both so vehemently espoused — and with which I strongly agree — that elections have consequences, and that within very broad limits, the president should get some respect from the Senate for his picks, and NOT be voted against just because he’s of the opposite party.

    Maybe McCain had good reasons not to vote for Sotomayor. Fine (although I never heard about them if he did). You don’t have to roll over for every nominee to prove you are fair-minded. An intellectually honest person will approve of some (of most, under usual conditions) but disapprove of others.

    But this time, if he votes no, I really want to hear some good reasons.

    Same thing with Lindsey, of course. He doesn’t have to vote to approve her to prove his integrity, but if he doesn’t I expect a strong argument explaining why. And I’m sure we’ll get one, if that comes to pass.

  23. Doug Ross

    “But this time, if he votes no, I really want to hear some good reasons.”

    The reason you won’t hear is this:

    “I am voting no so I can look like a real conservative in the upcoming primary where I am only polling at 47%”

    As he did with his pick of Palin, McCain has shown there is nothing he will not do to win. At this point, his dignity is non-existent.

  24. Bart

    She will be confirmed. Even if the “memo” story is true, it will make no difference. In case you haven’t heard about the “reworded memo” in the partial-birth abortion uproar during Clinton’s administration, Kagan apparently reworded a memo sent to the White House by the ACOG that had a direct impact on the courts when deciding cases involving the procedure.

    I read the story and saw a copy of the memo with the changes. If she did make the changes as shown, she is not fit to be a Supreme Court Justice. When asked about it, she was vague, did not answer direct, and the teflon nominee continued with the session, untouched.

    It won’t matter in the end. Rubber stamp all the way through.

  25. Phillip

    Brad, it’s politics, plain and simple. McCain may come up with a plausible-sounding reason for voting No, but it comes down to the fact that he’s in a tough primary with the freaky-righties trying to toss him out. Voting no on Kagan is an easy choice, she’s got plenty of votes anyway for confirmation, and it strengthens his hand vs. Haynsworth.


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