Bench Memos

Law & the Courts

What Lindsey Graham Actually Said

Yesterday a Politico reporter covering the Senate Judiciary Committee deliberations on the nomination of Ketanji Brown Jackson tweeted out: “Graham says if Republicans were in charge of the committee and control of the Senate, Jackson would not have gotten a hearing.” Only more than an hour later, after her initial tweet had gone viral, did she follow up (without any clarifying commentary) with Senator Lindsey Graham’s “full quote”:

If we get back the Senate and we’re in charge of this body and there’s judicial openings, we will talk to our colleagues on the other side, but if we were in charge she would not be before the committee. You would have had someone more moderate than this. [Emphasis added.]

The Politico reporter’s article yesterday somehow saw fit to exclude the last sentence from her quote of Graham.

In context, it ought to be obvious that Graham was stating that if Republicans had been in the Senate, they would have exercised their leverage to make sure that President Biden nominated “someone more moderate” than Jackson to the Breyer vacancy. In other words, Jackson “would not be before the committee” (“would not have gotten a hearing,” per the initial paraphrase) because, in Graham’s view, Biden would not have nominated her. (Of course, there is also ample reason to question whether Breyer would even have announced his retirement, and created a future vacancy, if Republicans controlled the Senate.)

There is, of course, no news in the elementary proposition that someone who has not been nominated would not have a confirmation hearing. Nor is there any news in the fact that a Senate Republican majority would try to moderate Biden’s picks, just as a Senate Democratic majority would try to moderate a Republican president’s picks.

The reporter’s initial tweet and her full article have (understandably) been misread to mean that Graham was saying that if the Republicans were in control of the Senate and if Biden had nominated Jackson, the Republicans would not have given Jackson a Judiciary Committee hearing. That misreading appears to have metastasized into the broader assertion that Graham was saying that no Biden nominee would have received a hearing. Given Graham’s ardent support for the candidacy of Michelle Childs, that is a very bizarre assertion to impute to him.

But it gets even worse. One reporter goes so far as to contend that Graham, in her mistaken account of his position, was “overtly acknowledg[ing] his party’s strategy.” So she imputes to Senate Republicans generally the position that she mistakenly attributes to Graham.

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