Read Lindsey Graham’s Speech on the Court, Filibuster, and Future of the Senate

When they write the history of these times, I’m sure when it comes to Senate history, this is going to be a chapter, a monumental event in the history of the Senate, not for the better but for the worse. And after we’re all long dead and gone, somebody may be looking back and trying to figure out what happened and what motivated people. I’m going to tell you what’s motivated me since I’ve been in the Senate: an understanding that the job of the senator when it comes to Advice and Consent is not to replace my judgment for that of the president, not to nullify the election, but to be a check and balance to make sure that the president of either party nominates someone who’s qualified for the job and is capable, from a character point of view, of being a judge of us all, and has the intellect, background, judgment, and experience to carry out the duties of a Supreme Court justice. I expected that when President Obama won the White House that he would pick judges I would not have chosen based on our different philosophies of liberal/conservative jurisprudence. . . . “[Justices Sotomayor and Kagan] both are progressive judges who come from the progressive side of the judicial spectrum: both highly qualified, capable women, who had a stellar legal record. Even though they had outcomes I did not agree with, they were certainly in the mainstream. Both had been judges, and I think [President Obama] chose people that I would not have chosen, but were really highly qualified. I was the only member of the judiciary committee on the Republican side to vote for either one of the—Miss Kagan or Miss Sotomayor, because I used a standard that I thought was constitutionally sound. I’m not telling any other senator what they should do. I’m just trying to explain what I did. The Federalist Papers, number 76, written April 1, 1788 by Mr. Hamilton said, “To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” So from Hamilton’s point of view, it was a check and balance against a crony or an unqualified person, someone who was popular but not qualified for the job, somebody who was appointed because they were close to the president, not qualified for the job, somebody that was appointed because they were a favorite son of a particular state that would not be fair to everyone else. When you look at the history of the Advice and Consent clause, it’s pretty clear that I don’t think the Founding Fathers had in their mind that one party would nullify the election when a president of another party was chosen by the people when it came to Supreme Court confirmation, because they chose somebody they did not agree with philosophically. So I voted for Elena Kagan and Sonia Sotomayor knowing that they come from the progressive judicial pool, and Neil Gorsuch is one of the finest conservatives that any Republican president could have chosen, and he is as every bit as qualified as they were. His record is incredible: 10 and a half years on the bench, 2,700 cases and one reversal, he received the highest rating of the American Bar Association, of well-qualified, just like Sonia Sotomayor and Elena Kagan. . . . Twenty-seven hundred court decisions, one reversal, praise from all areas of the law: left, right, and middle. The ABA report of 900 pages describes a very thoughtful man, an incredible judge, a good person. So I don’t think anybody can come to the floor and say, even though you may disagree with an outcome, that Judge Gorsuch is not qualified using any reasonable standard to be chosen by President Trump. He’s every bit as qualified as the two Obama appointments. So, clearly, qualifications no longer matter like they used to. Antonin Scalia, who [preceded] Judge Gorsuch, hopefully will soon be Justice Gorsuch, was confirmed by the Senate 98-0. Ginsburg, Ruth Bader Ginsburg, 96-3. I would argue that you could not find two more polar opposite people when it comes to philosophy than Justice Ginsburg and Justice Scalia, and they became very dear friends. But nobody in their right mind would say there’s not a difference in their judicial philosophy. Strom Thurmond, my predecessor, a very conservative man from South Carolina, voted for Miss Ginsburg. Clearly, a conservative would not have chosen her, because she was general counselor for the ACLU. And I can tell you that Ted Kennedy and other people on the progressive side of the aisle would not have voted for Antonin Scalia based on philosophy. Something’s happened in America from 1986 and 1993. The Constitution hasn’t changed. Something has changed, and I think the politics of the moment have taken the Founding Fathers’ concept, turned it upside down. From the time that Scalia was put on the Court and Ginsburg was put on the Court, everything has changed. So I was here when the first effort to filibuster judicial nominations was made in earnest. The first term of Bush 43, there was a wholesale filibustering of circuit court nominees of President Bush. I was part of the Gang of 14 that broke the filibuster. We lost a couple of nominees, but we did move forward. And we said there would be no further filibuster of judges unless there was an extraordinary circumstance. That allowed Alito and Roberts to go forward. Both of them got a good vote. Alito, we had to get cloture, but we got 78 votes. Clarence Thomas was probably the most controversial pick in my lifetime. And if you can remember that hearing it was just news, front page news every day and TV every night. Not one Democratic senator chose to filibuster him. He got an up-or-down vote, and he passed, I think, 52-48. And they could’ve chosen to require cloture, but they didn’t. So this is the first time in the history of the Senate that you’ve got a successful partisan filibuster of a nominee. Abe Fortas was filibustered to be Chief Justice of the Supreme Court by almost equal number of Democrats and Republicans because of ethical problems, and he resigned. So we are making history today: the first successful filibuster in the history of the United States Senate to deny an up or down vote on a nominee to the Supreme Court. It breaks my heart that we’re here. I don’t know what to do other than change the rules to have some sense of fairness. I can’t believe that Judge Gorsuch is not qualified by any reasonable standard. I voted for Sotomayor and Kagan. Nobody even asked for a cloture vote. They went straight to the floor. One got 62 votes, 63 votes, the other got 68 votes. And I don’t know why we can’t do for Judge Gorsuch what was done for Sotomayor and Kagan. We keep hearing about Judge Garland. Judge Garland’s a fine man. Would’ve been a very good Supreme Court justice. Justice Scalia died in February 2016 after three primaries were already held. The nominating process was well on its way for picking the next president, so this was an election year. And I remember what Joe Biden said in ’92, the last year of Bush 41’s term, when there was a suggestion that somebody might retire in the election year, and he said, basically, “If someone steps down, I would highly recommend the president not name someone, not send a name up. If he, Bush, did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee. It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” That’s what Vice President Biden said when he was chairman of the Senate Judiciary Committee in ’92. That made sense. President Trump put a list of names out that he would choose from if he became president, which was historic. Part of the contest in 2016 was about the Supreme Court. I have no problem at all saying that once the campaign season’s afoot, you let the next president pick, and that’s no slam on Judge Garland, a fine man. I got zero doubt if the shoe had been on the other foot, it would have been a different outcome. I can’t imagine Harry Reid being in charge of the Senate in 2008 and would allow President Bush in his last year to nominate somebody to the Court, and they would approve that decision once the campaign season had started in 2008. I say that knowing that it was Senator Reid who chose to change the rules in 2013, which broke the Gang of 14’s agreement in part. And here’s what Harry Reid said in 2005: “The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominee a vote.” All I can say is in the hundred-year history of the Senate, from today going backwards, there’s been one person put on the Court when the president was of one party and the Senate was held by the other party, and a vacancy occurred in the last year of a presidential term. We’ve done nothing that would justify Judge Gorsuch to be treated the way he’s been treated. And he’s been treated pretty badly. Here’s what Nancy Pelosi said: “If you breathe air, drink water, eat food, take medicine, or any other way interact with the courts, this is a very bad decision.” All I can say is that Judge Gorsuch does not deserve that. That is a political statement out of sync with the reality of who this man is, and the life he led, and it’s that kind of attitude that’s gotten us here today. I can also say there’s blame on my side, too. Nobody has clean hands completely on this. I can remember when Justice Sotomayor was nominated, she made a speech to the effect that a white man would have a hard time understanding what life is like for minorities. And that was taken to believe that she somehow could not be fair to white men. That was a speech she gave, provocative, but I never believed it was an indication that she was somehow prejudiced against white men. And the reason I concluded that was that everybody who had known her, including white men, said she was a wonderful lady. I remember Elena Kagan, the attack on our side was that she joined with the administration of Harvard to kick the ROTC unit off campus. Somehow, that made her unpatriotic. Well, my view was that that was the position of a very liberal school called Harvard, and no one could ever convince me that Elena Kagan was unpatriotic. She seemed to be a very nice, highly qualified lady, and that decision by Harvard could not be taken to the extreme of saying that she’s not fit to serve on the Court. So I was able to look beyond the charges leveled at these two ladies on our side to understand who they really were. And when you look at people who know these judges the best, they can tell you the most accurate information. In the case of Kagan and Sotomayor, there were a lot of people left and right who said they were well-qualified, fine ladies. And when you look at what was said about Judge Gorsuch in the ABA report, just an incredible life, well-lived. So here we are. We’re about to change the rules. Up until 1948 you could—it was a simple majority requirement for the Supreme Court. As a matter of fact, most Supreme Court nominations in the history of the country, a large percentage were done based on a voice vote. It’s only modern times where we’ve gotten this political contest over the court. Probably started with Judge Bork. Some blame to go around on both sides, but I can say this: That while I’ve been here, I’ve tried to be fair the best that I know how to be. I voted for everybody I thought was qualified. I said as to Judge Garland, let the next president decide. At the time I said that in March of 2016, I had no doubt in my mind that Donald Trump would lose, that Hillary Clinton would pick somebody probably more liberal than Garland. But it made sense to me in that stage in the process to let the next president pick. So the fact that we’re filibustering this man says a lot about the political moment. If this were a controversial character, I might understand it better. So when you look back and try to figure out what we did and how we got here, I can say this: That we took one of the best people that President Trump could have nominated—somebody I would have chosen if I’d gotten to be president. I think Paul Ryan, Mike Pence, any of us would have chosen Neil Gorsuch. And he was denied an up-or-down vote, and that says all we need to know about the political moment. We’ll change the rules. It will have an effect on the judiciary, and it won’t be a good one, because in the future judges will be selected by a single party, if you have a majority. No requirement to reach across the aisle, which means the judges will be more ideological. When you have to go over there and get a few votes or when they have to come over here and get a few votes, you’re going to water down a little bit some of your choices, and the most extreme ideological picks available to a party . . . are probably not going to be able to make it through. Now they will. So I think what you’ll see over time is that the most ideological people in the Senate are going to have a lot of say about who’s chosen by the president. So it will change the nature of the judiciary. And to the Senate itself, every Senate seat now becomes a referendum on the Supreme Court. So when we have a contest for a Senate seat, it’s not just about the Senate. It’s about the seat affecting the outcome of the Court, because all you need is a simple majority. Whether or not it leads to changing the legislative filibuster, which would be the end of the Senate, I don’t know, but I don’t think it helps. There will be a majority around here one day, a president of the same party, control of the House, and they’ll get frustrated because the other side won’t let them do everything they want to do, and they’ll be tempted to go down this road of doing away with the 60-vote requirement to pass a bill, not appoint a judge. And that will be the end of the Senate. We made that more likely by doing this. It was more likely in 2013. I hope I’m wrong, but I think we set in motion the eventual demise of the Senate. The one thing I can say, on an optimistic note, that while I’ll vote to change the rules for this judicial nomination, I will not ever vote to change the rules for legislation. And the reason I’m voting to change the rules is I don’t know what I go home and tell people why Sotomayor and Kagan got on the court and Gorsuch couldn’t; why President Obama was able to pick two people who were highly qualified and Trump wasn’t able to pick one person highly qualified. You just can’t have it where one side gets their judges and the other side doesn’t. So, to rectify that wrong, I guess we’ll have to change the rules. Not a good day. Hoping it would never come. But it has. And to the extent that I have been part of the problem, I apologize to the future. But I think I’ve, at least in my own mind, tried to do the right thing as I saw it. I took a lot of heat for voting for their judges at a time when there was a lot of heat on our side. I’m glad I did. Not that I’m not partisan. I certainly can be, but I just think the history is going down a very dark path. The Senate is going down a very dark path here, and there will never be another 98 votes for a Scalia, and 96 votes for a Ginsburg. And that’s a shame, because even though they may be different, they have one thing in common: They’re good people who are highly qualified to sit on the Court, and I can understand why a liberal president would choose one and a conservative president would choose another. What we’re doing today is basically saying we don’t really care about election results any more in the Senate. With that, I yield.