"The system is definitely broken -- I don't know if it can ever be fixed," the South Carolina Republican said with exasperation.
It was a startling admission coming from the man who will run countless confirmation hearings in the coming months in an effort to confirm President Donald Trump's nominees. Graham spoke up as the committee considered the nomination of Neomi Rao.
In some way, Rao's nomination is Exhibit A of the current dysfunction.
When she was first nominated last year, she was considered by many as a sure-fire candidate for the Supreme Court one day, despite objections from the minority Democrats. But after coming under criticism from fellow conservatives, even her confirmation for the lower court could be extremely close -- and potentially jeopardize her chance for the bench someday.
The friendly fire stunned her supporters.
"This is the mentality of a circular firing squad," said Jonathan Adler, a professor at Case Western Reserve University School of Law.
Rao's process encapsulates the modern-day confirmation system where proxies jockey for their nominee with the ferocity of a campaign, Democrats and Republicans take turns jettisoning long-held Senate rules, and some question whether the system has become irretrievably broken, erasing the lines between the judicial and political branches.
Supreme Court tryout
Rao's nomination for the US Court of Appeals for the District of Columbia Circuit, to take the vacant seat of Brett Kavanaugh, was announced by Trump himself in November during a Diwali ceremony at the White House. The President caught some by surprise with the impromptu announcement that came some 24 hours earlier than expected.
"We are never going to do better than this," the President said, looking out into the assembled crowd.
After announcing her name, he said: "So that could be a big story."
Little did he know.
Rao was ultimately voted out of the Judiciary Committee, 12-10 along partisan lines last Thursday. But it wasn't a ringing endorsement.
Republican Sen. Joni Ernst of Iowa said she'd vote for Rao because of her expertise on administrative law. But Ernst called some of Rao's articles on date rape -- written years ago when she was a student at Yale University -- "abhorrent," echoing the sentiments of Democrats.
Rao had once written: "It has always seemed self-evident to me that even if I drank a lot, I would still be responsible for my actions... A man who rapes a drunk girl should be prosecuted. At the same time, a good way to avoid a potential date rape is to stay reasonably sober."
Rao has since apologized.
But Ernst then did something unusual. She said that if Rao were ever up for a seat on the Supreme Court she may not vote for her.
"I would also state that should Mrs. Rao be nominated for another court at another time, my decisions and my vetting process and considerations may be very different," Ernst said.
GOP Sen. Ted Cruz of Texas expressed a similar sentiment.
The statements highlight a complication in the current system. Very often, presidents nominate individuals to the lower courts, and a premature battle for the Supreme Court begins.
That means a lower court hearing becomes a tryout for the Supreme Court, even if there is no vacancy on the horizon.
"If Neomi Rao's intellect, qualifications, and background make her a potential Supreme Court short-lister, that should be something to celebrate, not the basis for attacks," Adler said.
Whispering (and shouting) campaign
Ernst's misgivings were nothing like the fireworks that went off when Sen. Josh Hawley, a Republican from Missouri, questioned Rao's views on abortion just after her confirmation hearing.
For nearly two years, a troika of power consisting of White House Counsel Don McGahn, then-Judiciary Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell had pushed through a record number of nominees. But McGahn left the White House, Graham took over for Grassley, and Hawley's comments caught the new, less experienced, teams by surprise.
Hawley also came under fierce attack from members of his own party and outside groups backing Trump's nominees. The conservative Wall Street Journal editorial page even denounced him.
Hawley held his own, insisted on another meeting with Rao and even spoke with her former boss, Justice Clarence Thomas.
Ultimately, Hawley said he would vote in her favor.
But first, he lashed out at Republicans who had criticized him for publicly expressing early reservations. He told his colleagues that he'd been sent to Washington to "change a broken system" and that he was committed to thoroughly vetting every nominee.
After Hawley spoke, Sen. John Kennedy, R-Louisiana, praised Hawley and offered a rare glimpse of pressures that some senators feel.
"Last time I checked, the Constitution provided that we were supposed to advise and consent," Kennedy said, "not outside interest groups."
Kennedy added that he was offended by an "obviously organized effort by some" to "impose their will on members of this committee" and he said he was tired of it.
"I've had the experience Mr. Hawley's had. I didn't appreciate it. I've had people come to my office and talk about campaign contributions. I didn't appreciate it. I've had threats made in the past. I didn't appreciate it and I don't appreciate it for Sen. Hawley. " Kennedy said.
Kennedy was touching on a whispering campaign that emerged around Rao. Two sources, for instance, say it was fueled by those who fear that if a vacancy were to arise on the Supreme Court, Rao might threaten the chances of other candidates who have a more established record on abortion.
Again, there is currently no Supreme Court vacancy.
Trading blame
Rao's hurdle right now are the Republican votes in a closely divided Senate. But the deterioration between the parties has also intensified in recent years.
Justice Ruth Bader Ginsburg and the late Justice Antonin Scalia were confirmed 96-3 and 98-0 respectively, despite the fact that she was a former lawyer for the ACLU and he was a trailblazer for conservative principles. Such votes would be unheard of today.
Graham often notes that as a Republican he voted to confirm President Barack Obama's nominees, justices Elena Kagan and Sonia Sotomayor. As chairman, he has already witnessed the finger-pointing from the two sides, blaming each other for the current morass.
Democrats, for example, point out it was Senate Majority Leader Mitch McConnell who refused to hold hearings for Obama's nominee, Merrick Garland, to the Supreme Court after Scalia died in February 2016.
Republicans often counter with the fact that then-Democratic Majority Leader Harry Reid changed the playbook back in 2013 by doing away with the longstanding rule that 60 votes were needed to end a filibuster on a judicial nominee. The move allowed some of Obama's picks to be confirmed to the DC Circuit.
There is also currently a raging debate on the committee over the Senate's longtime custom of honoring a home state senator's objection to a nominee by submitting a "blue slips" to block the nomination.
Graham is not alone in thinking that the system is broken. Several Supreme Court justices have said the same thing. Back in 2016, Chief Justice John Roberts lamented that the politicization of confirmation hearings would change how the American people would come to view the judiciary.
"When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it would be viewed in those terms," Roberts said back then in a speech. The comments came before the Garland controversy and the hearings of Neil Gorsuch and Brett Kavanaugh.
But no one seems to think anything is going to change any time soon. On Monday, the Senate reconvenes to resume consideration of the nomination of Allison Rushing to be a judge on the 4th Circuit.
In her late 30s, she is one of Trump's youngest nominees.
Alliance for Justice, a progressive group, has announced its opposition.
"Like many other Trump nominees, she appears to have been chosen on the basis of her record of commitment to conservative causes and organizations rather than her legal career and experience," they say on their website.
Her supporters point to her sterling credentials including a clerkship with Gorsuch when he was on the lower court and Thomas on the high court.
The whispering has already begun: she might one day be a Supreme Court nominee.
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