The Wrong Town at the Wrong Time

Having written extensively, in To Face Down Dixie, about the involvement of South Carolina’s senators in the Supreme Court nomination process, I observed with interest the reaction to Lindsey Graham’s emotional outburst during Brett Kavanaugh’s turbulent confirmation hearings.

Lindsey prides himself on his idiosyncratic influence. During one bizarre moment, he thundered at Kavanaugh, “when you see Sotormayor and Kagan, tell ‘em Lindsey said hello … ‘cause I voted for them!” Was there ever a time when a senator told a Supreme Court nominee to say “hello” to two of the justices because he supported their confirmation?

Emotional outbursts such as Lindsey’s may seem incongruous with the same person’s willingness to back nominations made by presidents of the opposing party … but both are consistent with the South Carolinian influence in the nominations process.

Ernest “Fritz” Hollings was one of only two Democratic senators to vote for Ronald Reagan’s controversial nomination of Robert Bork, claiming on the Senate floor that he would back Bork to “stand up to the onrush of contrived threats and pressure” from the National Association for the Advancement of Colored People (NAACP).

Fritz’s claim during the 1987 Bork debate, that “we become a lesser body when we trash a distinguished judge” sounds eerily similar to Lindsey Graham’s angry accusation, during the 2018 Kavanaugh hearings, that Democrats “wanna destroy this guy’s life.” Fritz’s description of a system in which “judges are lynched to appease the public” chimes perfectly with Lindsey’s claim that the Kavanaugh hearings constitute “the most unethical sham since I’ve been in politics.”

One other, less explosive moment, which seemed to go unnoticed, was Wyoming senator John Barrasso’s reference to “the Biden rule,” supposedly a belief that a nominee should not be confirmed during an election year. Eccentric enthusiasts of the nominations process, such as myself, will recognise this familiar doctrine as the more widely-discussed “Thurmond rule,” and recall that the term originates with South Carolina senator Strom Thurmond’s legendary opposition to the confirmation of Abe Fortas as Chief Justice in 1968.

This was by no means the only time that Thurmond – whose seat is now filled by none other than Lindsey Graham – made his mark on the process, as evidenced by his theatrical obstruction of Thurgood Marshall’s confirmation as the Court’s first African American justice in 1967. The mischief-making of other senators, notably Olin D. Johnston, and the notorious Coleman L. Blease, proves that Thurmond was not the first South Carolina senator to impose a profound impact on judicial nominations.

Lindsey Graham’s comments on the manner in which Democrats used the process to victimise Brett Kavanaugh prove highly instructive, if only to the likes of me. It is significant that, having asked Kavanaugh, “you lookin’ for a fair process?” he went on to warn the nominee, solemnly, that “you came to the wrong town at the wrong time, my friend.” This, one of the best lines from the outburst, will stick with me, if only because it reminded me, and probably others, of Clarence Thomas’s bitter declaration that, for him, the process was “a high-tech lynching for uppity blacks” – surely the most memorable line ever spoken during a Supreme Court confirmation hearing.

Yet while “the wrong town at the wrong time” ought to have been the highlight of Lindsey’s outburst, cynics might argue that the process has never been fair, and never been used responsibly. And they would be right. Barrasso’s re-writing of history points to the endless blame game between the two parties, which has characterised the process for generations, but is now truly out of control. It also points to repeated claims that the system is “broken.”

As a humble non-American, my view is that while the Founding Fathers may not have created a perfect system for confirming justices of the Supreme Court, the one in place is by no means defective. It is simply the case that those who have participated in it have used it poorly, irresponsibly, and in some cases, disastrously.

I do hope that the Kavanaugh episode has proved useful in raising awareness and promoting discussions of sexual and other abuse. In terms of educating the American public on the importance of the Supreme Court, the relevance of activism and restraint in the judicial outlook of the justices, and – crucially – the potential consequences of a centrist judge (in this case, Anthony Kennedy) being replaced by a judge whose judicial outlook is either well to the left or (in this case) the right, then the recent hearings have been, as with so many before them, quite catastrophic.

Some may consider To Face Down Dixie a book about South Carolina. It isn’t. It is a study of Supreme Court nominations that happens to focus on a colorful yet overlooked aspect of that complex process. It could, of course, be considered a work of history, but as Lindsey Graham’s remarkable behaviour proves, there is nothing particularly historical about it.

First published by LSU Press Blog on 12th October 2018. https://blog.lsupress.org/the-wrong-town-at-the-wrong-time/