South Carolina's Lindsey Graham was the only question mark going into the Senate Judiciary Committee's vote on Supreme Court nominee Elena Kagan; the six other Republicans voted no, with all 12 Democrats voting yes. Graham sided with the Democrats this morning, using his remarks to ruminate on Congress' current crisis of partisanship. "No one spent more time trying to beat President Obama than I did, except Sen. McCain," said Graham:
I missed my own election -- I voted absentee. But I understood we lost. President Obama won. I've got a lot of opportunity to disagree, but the Constitution, in my view, puts an obligation on me not to replace my judgment for his, not to think of the hundred reasons I would pick someone different. ... I view my duty as to protect the Judiciary and to ensure that hard-fought elections have meaning in our system.
Graham went on to question the role of the minority, asking, "How do you stay within keeping your job and honoring the fact that the people have spoken?" His sweeping contemplation stood out in a nomination process that has provided so few surprises, but it was not dissimilar from what he said during Justice Sonia Sotomayor's confirmation hearings last year. Justifying his "yea" vote (again, the only Republican "yea" vote on the Judiciary Committee), Graham had explained then that "elections have consequences."
Today, Graham praised Kagan's work on Guantanamo Bay cases while solicitor general, and dismissed her military recruiting decision at Harvard by saying that "this Harvard Law School exercise said more about Harvard than it did about the military. I also want to put it in its proper perspective -- I believe that she is a loyal American who loves the military as much as anyone else."
Graham cited a recommendation letter for Kagan from her law school classmate Miguel Estrada, a George W. Bush circuit court nominee who was filibustered by the Democrats in 2003. After reading Estrada's glowing review, Graham had asked Kagan during an earlier hearing to write her own recommendation of Estrada. She did, giving him an equal amount of praise. Graham said that the mutual respect between these ideologically opposed nominees gave him "hope ... it just makes me feel better."
Graham's comments spurred Democratic Whip Dick Durbin to call him an "extraordinary senator" who had prompted Durbin to rethink some of his previous votes against conservative nominees. Graham is used to praise from Democrats who appreciate his efforts to reach across the aisle. But as the Tea Party movement gains strength in South Carolina and sets its sights on Graham, he is picking his battles more carefully. He recently dropped out of a bipartisan effort to draft a climate bill and has been cagey on how he would vote on a bill were it brought to the floor.
Concluding his Kagan comments, Graham said that while "there will be a time when I disagree ... it should be the exception, not the rule." He invoked the Obama election a second time, repeating the "elections have consequences" line from his Sotomayor remarks:
I'm going to vote for her because I believe this election has consequences. And this president chose someone who is qualified to serve on this court and understands the difference between being a liberal judge and a politician. At the end of the day, it wasn't a hard decision ... She would not have been someone I would have chosen, but the person who did choose, President Obama, chose wisely.