Lind­sey Gra­ham stands alone

Austin American-Statesman - - OPINION -

Lind­sey Gra­ham is all of 5-foot-7 with his shoes on, but these days he tow­ers above his Se­nate Repub­li­can col­leagues. As the Ju­di­ciary Com­mit­tee held its vote on Supreme Court nom­i­nee Elena Ka­gan on Tues­day af­ter­noon, the seats around Gra­ham were empty. Sens. Jon Kyl of Ari­zona and John Cornyn of Texas, along with Tom Coburn of Ok­la­homa, showed their con­tempt for Pres­i­dent Barack Obama and his nom­i­nee by skip­ping the vote — just as they had done 51 weeks ear­lier for the vote on So­nia So­tomayor. “Mr. Kyl?” the clerk called out. “No by proxy,” an­swered the rank­ing Repub­li­can, Jeff Ses­sions of Alabama. “Mr. Cornyn?” Be­hind the empty black arm­chair, a Cornyn aide made a thumbs-down ges­ture. “No by proxy,” Ses­sions said. “Mr. Coburn?” “No by proxy.” Alone in this empty quad­rant of the com­mit­tee ta­ble sat Gra­ham. “Aye,” the South Carolinian said, nod­ding with self-as­sur­ance.

Gra­ham de­liv­ered his “yes” vote — the only such vote by a Repub­li­can on the panel — with a re­buke for both sides, par­tic­u­larly his fel­low Repub­li­cans who have be­come so re­flex­ive in their op­po­si­tion to Obama that they are dis­tort­ing their con­sti­tu­tional du­ties.

“I think there’s a good rea­son for a con­ser­va­tive to vote yes, and that’s pro­vided in the Con­sti­tu­tion it­self,” Gra­ham told his peers be­fore read­ing to them from Fed­er­al­ist No. 6, by Alexan­der Hamil­ton. “The Se­nate should have a spe­cial and strong rea­son for the de­nial of con­fir­ma­tion,” he read, such as “to pre­vent the ap­point­ment of un­fit char­ac­ters from fam­ily con­nec­tion, from per­sonal at­tach­ment and from a view to pop­u­lar­ity.”

Gra­ham said Ka­gan “has passed all those tests” en­vi­sioned by the Framers, then he chal­lenged his col­leagues: “Are we tak­ing the lan­guage of the Con­sti­tu­tion that stood the test of time and ba­si­cally putting a po­lit­i­cal stan­dard in the place of a con­sti­tu­tional stan­dard? That’s for each sen­a­tor to ask and an­swer them­selves.”

Cornyn (he was still in the room) stud­ied his cu­ti­cles. Coburn stroked his chin. Sen. Or­rin Hatch, R-Utah, raised a hand to cover a yawn.

Across the ta­ble, Dick Durbin of Illi­nois, the sec­ond-rank­ing Demo­crat in the Se­nate, took Gra­ham’s words to heart. “Dur­ing the course of his state­ment,” he said, “I re­flected on some of the things that I have said and how I’ve voted in the past and thought that per­haps his state­ment sug­gested there was a bet­ter course for many of us to con­sider in the fu­ture.”

The ba­nal­ity of the Se­nate con­fir­ma­tion process has be­come an old joke. Sen. Arlen Specter, D-Pa., stopped by the press ta­ble as he en­tered the room. “You think you’re go­ing to hear one word that you haven’t heard al­ready?” he asked the re­porters.

But Specter was wrong. Those who were there did hear some­thing fresh: Gra­ham’s pen­e­trat­ing in­dict­ment of the tribal logic that has over­taken his col­leagues.

First he read from a let­ter writ­ten by con­ser­va­tive le­gal scholar Miguel Estrada, a Ge­orge W. Bush nom­i­nee blocked by Democrats in 2003, stat­ing that Ka­gan should be “eas­ily con­firmable.” He then read from a let­ter Ka­gan wrote re­cently con­tain­ing sim­i­lar praise for Sen. Lind­sey Gra­ham, R-S.C., sat alone dur­ing a markup hear­ing of the Se­nate Ju­di­ciary Com­mit­tee af­ter it voted on the con­fir­ma­tion of Supreme Court nom­i­nee Elena Ka­gan. Gra­ham was the only Repub­li­can to vote to con­firm Ka­gan’s nom­i­na­tion, which passed 13-6. Estrada. “That gives me hope,” Gra­ham said, that peo­ple of dif­fer­ent “le­gal phi­los­o­phy and po­lit­i­cal in­ter­ac­tion can at the end of the day say nice things about each other. … I think it would make a lot of Amer­i­cans feel bet­ter if we could re­act that way our­selves a bit.”

The once-idle re­porters were tap­ping the keys of their lap­tops.

“Seventy-three of the 126 Supreme Court nom­i­na­tions,” Gra­ham con­tin­ued, “were done with­out roll-call votes. Some­thing’s chang­ing when it comes to the ad­vice-and-con­sent clause. … The ques­tion I have for the body: Are we liv­ing in an age of leg­isla­tive ac­tivism where the words haven’t changed in the last 200 years, but cer­tainly the vot­ing pat­terns are?”

He re­minded his col­leagues that “no one spent more time try­ing to beat Pres­i­dent Obama than I did, ex­cept maybe Sen­a­tor McCain.” But “Pres­i­dent Obama won,” he said, and “the Con­sti­tu­tion in my view puts a re­quire­ment on me as a sen­a­tor to not re­place my judg­ment for his, not to think of the 100 rea­sons I would pick some­body dif­fer­ently or pick a fight with Ms. Ka­gan.”

“Ob­jec­tively speak­ing, things are chang­ing, and they’re un­nerv­ing to me,” Gra­ham’s lec­ture con­tin­ued. It is, he said, “our obli­ga­tion to honor elec­tions” — an obli­ga­tion that led him to vote “yes” for Ka­gan. “It would not have been some­one I would have cho­sen,” he said, “but the per­son who did choose, Pres­i­dent Obama, I think chose wisely.”

Less than an hour af­ter the vote, pun­dits were as­sess­ing the po­lit­i­cal dam­age to Gra­ham. The Post’s Chris Cillizza judged that the vote for Ka­gan “en­sures he will face a se­ri­ous pri­mary chal­lenge in 2014.”

Prob­a­bly true. Luck­ily there are still a few law­mak­ers who be­lieve there are big­ger things than pol­i­tics.

Alex Bran­don

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