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Will Joe Biden Opt for Lindsey Graham’s Preferred Supreme Court Nominee?

Does the all-but-certain promise of a “yes” vote from Graham—along with Jim Clyburn’s support—make Michelle Childs the odds-on favorite?

Andrew Harnik/Pool/Getty Images

It’s beyond rare these days for any member of Congress to cross party lines, especially when it comes to confirming a Supreme Court nominee, but that’s the possibility Senator Lindsey Graham is dangling if President Biden picks Judge Michelle Childs of the U.S. District Court of South Carolina to succeed retiring Justice Stephen Breyer.

Childs is one of a handful of judges on Biden’s shortlist for the nomination, and that’s spurred Graham, a former Senate Judiciary Committee chairman, to publicly campaign for the president to pick the South Carolina judge. Graham has also argued that his party shouldn’t wage a lockstep blockade of whomever Biden picks.

He’s made his support of Childs plain in TV interviews, saying, “I can’t think of a better person for President Biden to consider for the Supreme Court than Michelle Childs. She has wide support in our state. She’s considered to be a fair-minded, highly gifted jurist. She’s one of the most decent people I’ve ever met. It would be good for the court to have somebody who’s not at Harvard or Yale.” (Her law degree is from the University of South Carolina.)

This is yet another dramatic about-face for Graham, the same senator who was an outspoken critic of Donald Trump during the 2016 campaign, only to become a close golfing buddy during his presidency, and who helped confirm all three of the then-president’s conservative Supreme Court nominees. Once upon a time, Graham was a member of the posse of wildcard “three amigo” senators (alongside the late John McCain and Joe Lieberman) who prided themselves on bucking their own party when their conscience objected. In the last few years, Graham seemed to have given up that mantle and instead embraced the more common lockstep Republican stance. Now he seems to be reverting to being a bit of the maverick he once styled himself. Is he really drawn by the allure of helping install a South Carolina native on the Supreme Court, political alignment be damned?

Matt Moore, a former South Carolina Republican Party chairman, said we should take Graham at face value. “There’s a certain amount of state pride in seeing somebody from South Carolina considered for the highest court in the land. Reasonable people realize she’d be a Democrat pick and not what they’d prefer, but being South Carolinian beats the rest of the bad alternatives,” he said. “I also think in a time of great political unrest there’s malaise at the thought of having another Harvard-Yale person on the Supreme Court. There seems to be some bipartisan unity on that point. Both parties are seeking the populist banner and generally would agree that having someone from outside of the Ivy Leagues could bring a small sense of real America to the table.”

But there’s also another motivation: reality. This is one of those situations where all the Senate knows there will be a new Supreme Court justice, and the odds tilt heavily toward Biden getting his way. Opposing that nominee, who will be a woman and Black, risks antagonizing African Americans against the GOP, something a senator like Graham might want to avoid.

“I think the McConnell, more establishment wing of the Republican Party only cares about regaining the majority. They see a disaffected African American community that’s not as active as they need to be, and so they don’t want a war,” a former Senate chief of staff and Senate Judiciary Committee alumna, who declined to talk on the record, said to me. “You do that by not having a big fight on this because you’re replacing a liberal with a liberal.”

Graham’s argument is extremely similar to those Democrats are making for Childs’s candidacy. They say that Childs’s state-school law degree, along with her undergraduate degree from the University of South Florida, is badly needed to diversify the court from the standard Harvard or Yale judges. House Majority Whip Jim Clyburn, a fellow member of the South Carolina congressional delegation and one of the most influential African American Democrats in the country, has been making the same case and has predicted that Senator Tim Scott could also end up supporting Childs. Scott so far has stayed mum on the nomination.

Clyburn had breakfast with Graham and Scott on Wednesday morning, and in an interview with The New Republic predicted that if Biden picked Childs, she would have both South Carolina senators’ votes, too. “I don’t think it’s that unusual for Graham. He’s supported Biden’s picks before,” Clyburn said. “It might be kind of unusual for Scott, who has had very positive things to say about Childs, and I predict if she’s the nominee, he’ll vote for her. But I suspect there are starting to be several other Republicans who will vote for her.”

The prospect of one of Biden’s picks having at least two Republican votes—and maybe more from the most moderate Republicans in the Senate—makes Childs an especially appealing prospect for Democrats. That extra padding would allay reasonable Democratic concerns of one of the 50 members of their caucus going rogue and opposing Biden’s nominee (Senators Joe Manchin and Kyrsten Sinema have made clear they can’t be counted on for major party votes).

Every person on a shortlist for a Supreme Court nomination receives a high level of scrutiny over their past rulings. For Childs, that’s meant coverage of her “tough-on-crime” sentences that have been overturned by other courts. There has also been attention on a 2020 ruling where Childs struck down a rule in her home state that required a witness to be present when absentee ballot are signed, something that’s sparked light “chiding” at Graham in South Carolina Republican Party circles, according to one keyed-in South Carolina former party official. The ruling, the former official said, showed some South Republican delegation members that “she wasn’t Supreme Court caliber by ruling on a decision that was overturned 8–0 by the Supreme Court.”

Childs is also facing opposition from progressives over rulings that liberals see as anti-union and pro-employer. As a result, the Bernie Sanders–aligned Our Revolution group is urging Biden not to pick Childs.

Graham’s support is unlikely to waver, though. He has voted for the last two Supreme Court justice nominees picked by a Democratic president. The South Carolina senator also supported, alongside Senators Susan Collins and Lisa Murkowski, the nomination of Judge Ketanji Brown Jackson, another Biden Supreme Court nominee shortlister, to be circuit court judge for the D.C. Circuit Court,  perhaps something of a preview or blueprint for how this Supreme Court nominating vote will go.

All presidents have to consider support among the Senate when picking a nominee to the Supreme Court. That’s especially true for Biden, since Democrats control the Senate only through Vice President Kamala Harris’s tie-breaking vote. Further complicating Democrats’ confirmation prospects, Senator Ben Ray Luján of New Mexico suffered a stroke this week, meaning that Democrats have to wait until he recovers to confirm a Supreme Court nominee, assuming all Republicans oppose her.

The fact that Democrats and Graham share some of the same talking points at this stage in the nomination prospect speaks to the difference in how Republicans and Democrats, respectively, approach confirming a Supreme Court nominee. Democrats want bipartisan support (and need it more than Republicans have recently). In recent confirmation fights, Republicans didn’t care as much. This time, the party in power wants some bipartisan cover—and for their own reasons, maybe at least a couple Republicans do, too.