It’s hardly a surprise that Senator Lindsey Graham’s decision to vote in favor of Elena Kagan’s nomination to the Supreme Court would elicit fawning praise from the Left (just as his decision last year to vote in favor of the Sotomayor nomination did). But Dana Milbank’s love letter to Graham in his Washington Post column today is beyond embarrassing.
According to Milbank, Graham “towers above his Senate Republican colleagues,” who “have become so reflexive in their opposition to Obama that they are distorting their constitutional duties.” How, you might wonder, are Republicans who vote against Kagan “distorting their constitutional duties”? It’s quite simple, in Milbank’s view:
“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….
Milbank also lauds “Graham’s penetrating indictment of the tribal logic that has overtaken his colleagues.” That “penetrating indictment” apparently consists largely of Graham’s assertion that “our obligation to honor elections” requires voting in favor of Kagan.
A few observations (in this post and a follow-on):
1. If Milbank had troubled himself to examine the passage from the Federalist papers that he and Graham imagine is so compelling, he would have discovered that Graham was referring to (and misquoting from) Federalist No. 76, not Federalist No. 6. (The transcript reveals that the original error was Graham’s.) More importantly, that passage can’t remotely bear the meaning that Graham would impose on it. Hamilton is explaining in Federalist No. 76 why it is proper for the Constitution to confer on the president the power of nominating officers of the United States generally. In that context, he predicts that the Senate would not often reject presidential nominations because it would not have much of an incentive to do so:
It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
Hamilton then explains that the Senate’s role in confirming nominees is nonetheless valuable:
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.
It is simply absurd to read these passages as setting forth Hamilton’s supposed view that senators, in voting on a Supreme Court nomination, shouldn’t consider whether the nominee has a sound judicial philosophy and a sound understanding of the Constitution. These passages don’t remotely speak to that matter. Moreover, in Federalist No. 78, in the very context of justifying the power of judicial review, Hamilton famously states:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
This passage strongly indicates that Hamilton would think it entirely proper, if not obligatory, for a senator to vote against a judicial nominee who he believed was “disposed to exercise WILL instead of JUDGMENT.” (And how could it not be?)
In sum, Graham utterly fails to make the case that his position of extensive deference to a president’s nomination of a Supreme Court justice is somehow constitutionally compelled.
More in Part II post.
* Update: As Ramesh Ponnuru emphasizes (and as the careful reader would discern from the excerpt from Federalist No. 76), Hamilton didn’t in fact write what Milbank says Graham says Hamilton wrote. I’ve tweaked the first sentence of point 1 to make that clearer.