TOP
Lindsey Graham
Chapters
The FRONTLINE Interviews
Lindsey Graham
U.S. Senator (R-SC) and Judiciary Committee Member
Lindsey Graham, a Republican, is a United States senator from South Carolina. He is the current chairman of the Senate Judiciary Committee and served as a member of that committee during the Supreme Court confirmation hearings of Brett Kavanaugh.
This interview was conducted by FRONTLINE’s Jim Gilmore on February 6, 2019. It has been edited for clarity and length.
This interview appears in:
Text Interview:
Highlight text to share it
Mitch McConnell Holds Open the Scalia Seat
Let’s start with the Merrick Garland controversy, whatever you want to call it.So [Antonin] Scalia dies, and within 45 minutes, Leader [Mitch] McConnell sort of makes the statement: “We are not going to be holding hearings.This president will not be the one that will be putting forth the next Supreme Court justice.”Very controversial.Democrats sort of say, “You're blowing up the system.”What was your view of that decision?I know you met with Garland.But what was your decision, your thoughts about that decision, and why it was necessary?
Well, number one, when I hear Democrats say they would do something different, I don’t believe them.Mr. Garland, Judge Garland basically was asked to replace Justice [Antonin] Scalia after the nominating process had started.And when you look, for the last 100 years, when you had a Senate in the hands of one party and the president of another party, we've only had one person under those circumstances confirmed, so there was nothing unusual in terms of the history of the Senate.
But when I heard my Democratic colleagues saying, “You're being unfair,” these are the people that changed the rules in 2013 to go to a simple majority for circuit judges, so I didn’t take their criticism much.
The Nomination of Brett Kavanaugh
The Kavanaugh hearings.Number one, how important—what was at stake in the Kavanaugh hearings, to replace a moderate, a swing vote—Kavanaugh, who was seen by the Democrats as being not a moderate, a very conservative, partisan, a lot of them will come in here and say.What was your view of that nomination when he came up, and what was at stake?
He was no more conservative than [Sonia] Sotomayor and [Elena] Kagan were liberal.And at the end of the day, President Trump gave us a list of who he would pick as a candidate, and to me, he chose from the list he talked about before he got elected.Elections have consequences.What did I take from this?If he had failed, if he had withdrawn or gotten defeated, you would have legitimized these tactics.And who in their right mind would want to be a judge after Kavanaugh?
The first day of the hearings, take us to that moment.They were crazy.There were Democrats shouting at you Republicans.There were protesters that were interrupting.Talk about what that was like and what was going on.
Well, there's a lot at stake.So let me give you some numbers here.In 1986, Justice Scalia, one of the most conservative judges ever on the court, was confirmed, 98 to nothing.In 1993, Ruth Bader Ginsburg was 96-3.So if you're a conservative, Ginsburg you would not choose, but how can you say she’s not qualified?She’s eminently qualified.Scalia, if you're a liberal, that’s the last person you would vote for in terms of philosophy. But he was eminently qualified.
So what happened between then and now?So the Supreme Court has gotten more and more political.Everybody campaigns about it matters who’s president, because the court’s at stake.It’s the biggest prize for the pro-life/pro-choice community, the anti-gun people, the pro-gun people.The court’s where all the action’s at.And [Anthony] Kennedy was the swing seat.So I thought Kavanaugh was so relieved when he was chosen, because I didn’t know if he was going to pick Judge Judy.The guy’s actually a real judge.And any Republican would have picked Kavanaugh.
So that first couple of days was about frustration.And I didn’t think much about it, other than this is just the way it is.
But what you're saying is that the Supreme Court is broken in a way.
The confirmation process is broken.
Explain that.
OK.Well, how does Ginsburg get 96 votes, and Scalia get 98 votes, and Kavanaugh gets, like, 50 votes?Sotomayor gets 68; Kagan gets 63; [Neil] Gorsuch gets 54.There's a trend here.So the bottom line is that the idea of voting for qualified people has been replaced by worrying about yourself.A vote for the Supreme Court is not about the justice; it’s about you as the senator.If you want to get a primary, the best way in the world to get a primary is being a Republican voting for a Democratic nominee, or vice versa.Of the Senate leadership, right now, on the Democratic side, not one has ever voted for a Republican nominee for the Supreme Court.Of the Republicans, none have voted for a Democratic nominee except Mitch McConnell, who voted in the ’90s for two Democratic nominees.So the leadership of the—of the Senate, R’s and D’s, pretty much don’t vote for the other side’s judges.
So who’s to blame?
I think the system has failed, right?I voted for everybody.I'm not without fault in life, but when it comes to the Supreme Court, I've been consistent.I voted for everybody.I voted for Sotomayor; I voted for Kagan.I voted for all the Bush people, because I tried to do it the Ginsburg-Scalia way.Clearly these people were qualified.How can you say that Sonia Sotomayor is not qualified?I was the only Republican on the committee voted for her.I think Kavanaugh and Gorsuch are as equally qualified.Roberts and Alito eminently qualified.The bottom line is, qualifications no longer matter.It is about the political exposure you have as a senator, because if you want to rile up your base, vote for somebody of the other party when it comes to being a judge.
Now, who votes for judges of the other party?People who have political problems.[Joe] Manchin (D-W.Va.) voted for Kavanaugh.If he hadn't have voted for Kavanaugh, I think he would have lost.The three Democratic senators who voted against Kavanaugh in Trump’s states all lost, and I think one of the reasons they lost is because of the Kavanaugh vote.
Allegations by Christine Blasey Ford
We’ll move along, because we've got to go through quickly.[Dr. Christine] Blasey Ford testimony.What was your take, and what was the effect of that testimony?
OK.So when I heard about it, I thought, OK, the hearing was contentious, but we’re OK.Sen. [Dianne] Feinstein (D-Calif.) said, “I've got a letter I want to share with the committee,” on the last day, the last hour.The next day you read about this accusation [by] Dr. Ford regarding a high school incident with Judge Kavanaugh.I really didn’t know.I just knew what I read.The first decision is, do we allow her to testify?Susan Collins (R-Maine), myself and Jeff Flake (R-Ariz.) said: “You need to hear from Dr. Ford.In this age, in this time, you’ve got to hear her out.”We’re willing to go to California to take her testimony.She came to the Senate, and sort of the rest is history.
What did I learn?I learned that the accusation against Judge Kavanaugh by Dr. Ford was unspecific in terms of time and location; that if it had been in a criminal setting, you couldn’t get a warrant, because you just really don’t have the facts to base a warrant on.And the four people described by her as knowing something about this said they don’t—they can't verify what she said. Quite frankly, they went the other way.
So, just from a legal point of view, there was no corroboration.And the other stuff that came out after Dr. Ford was a bunch of just really garbage, quite frankly.Something happened to her—I'm convinced of that—but Judge Kavanaugh persuaded me it wasn’t him.And the question is, when you're accused of something—like the lieutenant governor of Virginia; this is in 2004.I don’t know what happened, but I do know this: You’ve got to have some rules to judge these things.The accusation cannot be self-proving.
But at that moment after Blasey Ford gave her testimony, there had been a lot of reports that the White House was a little worried that there was some worry within the Republican senators that well, you know, she sounded pretty sincere.
Well, she did.I mean, she was relating an experience in her life.But I'm a lawyer.I used to be a judge, used to be a prosecutor, a defense attorney.Time and location matter.She couldn’t tell us how she got there; she couldn’t tell us how she got back.She was specific in some detail about the assault.But when you look at the entire situation, the back door of her house, it made me wonder that she’s transferring a bad experience onto Judge Kavanaugh.The bottom line is, I looked at it from a sort of an objective point of view.It is a felony he’s being accused of.It’s not a trial.But you have to presume somebody, I think, innocent until otherwise.An accusation like this can't be self-proving.So when she spoke, the details were still unfilled in, for lack of a better word.But presentation-wise, she was a wounded person.Clearly, something happened to her.
The Judge Kavanaugh testimony that took place, the Democrats that have come in here sort of say, “Truly partisan.The guy showed what his true colors were.”
I think they showed what they were all about.So if I were him, I don’t know what—what do you do when you're accused of being a gang rapist and drugging women?How are you supposed to present yourself?What do you do when the committee basically has information and they never tell you about it?All the meetings with the senators—the senators had this letter; they never once asked him: “Hey, I've got this accusation.Could you tell me about it?”So I've got zero concern about my Democratic colleagues’ feelings toward his disposition.
What I do have a problem with [is] the way this hearing was conducted.If I had done this, if this had been a Democratic male nominee, and some lady from South Carolina came up to me and said, “In high school I had a bad experience, but I don’t want you to tell anybody about it,” and somebody in my staff leaked it to the paper, you would be killing me right now.If a lawyer for the woman from South Carolina, conservative lawyer, never told her, “By the way, the Democrats would come to South Carolina so you don’t have to go to Washington to testify,” they would be all over us.If I had said to the Democratic male nominee, “Because you have a different political philosophy, judicial philosophy, you're not entitled to the presumption of innocence,” they would have eaten me alive.If this had been the shoe on the other foot, the entire press coverage of this would have been different.
When you made—
Except for PBS, because we’re talking about it.
When you made your statement, when you were questioning Kavanaugh on the 28th, I guess it was, you were pretty emotional.
I was pissed.
Why? What were you trying to—
Because I voted for Sotomayor and Kagan.And I thought this was a complete joke.I thought it was a drive-by shooting. I thought they were destroying this guy’s life.We’re talking about notations in a high school annual.The devil’s triangle was not group sex; it was a drinking game.I've never been more offended and more depressed at any time in my service in the Senate, because I would not have done this to Sotomayor and Kagan.I thought it was unjustified.I thought it was dirty pool.And it blew up in their face.Now what do we do going forward? I don’t know.Is the damage done now?I have no idea.
Well, that’s the question.You called this an unethical sham.
Yeah, it is. It was a sham, complete sham.
An Independent Judiciary
So how do you fix it then?
Well, I guess you start over.The thing I like about elections is that you kind of clear the air and you start over.We’re going to have a bunch of people come up for votes in judiciary soon, judges, hoping we can get them through in an orderly fashion.Sen. Feinstein’s a wonderful person.I never believed for one second that she had anything to do with leaking the information about Dr. Ford.She’s a very ethical person.But somebody on this committee got it out into the press, and Judge Kavanaugh, I think, was bushwhacked, for lack of a better term.And all these other accusations got to be bizarre and weird.And the whole thing got to be, quite frankly, a debacle.
So what do you do going forward?Start over.I would ask President Trump, if he gets another Supreme Court pick, to pick somebody that’s highly qualified, that’s got experience as a judge, that has a judicial philosophy consistent with what a conservative Republican president would choose from, and pick them, and see what happens.
Another testimony, another thing that you said during the hearings, was that a new standard had been set during these hearings.You talked about delay and obstruction and destruction, beginning of a process that will tear this country apart.
Yeah. Well, who would—
What did you mean?
OK.An independent judiciary is a godsend.If you go to the Middle East like I do a lot, what's missing over there?Why are there militias?Because nobody trusts the cops or the judges.Everybody believes the only way that my group can get a break is to have a bunch of guns.So in America, we are Republicans, we’re Democrats, we’re tribal in many ways.But we bought into the idea that the courtroom is a fair shake.<i>Bush v. Gore</i>, to Al Gore’s credit, undying credit, unending credit, he walked away from the presidency based on a 5-4 vote, over 500 votes in Florida.
Now, come on.That, to me, whatever he’s done for the country, nothing was more important than that.An independent judiciary is the heart and soul of a democracy, not voting.Sadaam Hussein, they vote.The bottom line is, I worry about people wanting to be judges in the future.And why is it always our people that go through this?In the future, really, would you want your spouse, your brother, your sister, to go through this process?I mean, really.How many people, after Kavanaugh, are going to think twice about taking one of these jobs?
And are the courts politicized by the process that we've been seeing for the past couple of decades?
They have always—you’ve got—what do you expect of Sotomayor and Kagan?They have never disappointed me.They have voted with the liberal bloc almost all of the time, but I expect that.They're very talented, smart people, with a philosophy different than mine.And you have political philosophy; you have judicial philosophy.That doesn’t mean you can't be a fair judge.They have never done anything out of the mainstream.They're not ideologues.They can take a set of facts and reach a different conclusion than conservatives on the court, using rules of construction, but they do have a different philosophy about the law and how it interacts with certain areas of society.That doesn’t mean they're unqualified.
I expect Gorsuch and Kavanaugh to be a lot like [John] Roberts.I expect Sotomayor and Kagan to be a lot like Ginsburg and the other members of the court that were appointed by Democrats.I just expect that.But I do expect that the court rise to the occasion.You know, Obamacare, Judge Roberts was the deciding vote.All the Republicans got really mad at him.I said: “Listen, what did we call the individual mandate?A tax.We said, on the floor, this is a tax.And you know, what did Justice Roberts say?Hey, it’s a tax.You’ve got a lot of authority to oppose a tax.”So the Justice Roberts is really worried about the court being seen as overly political.
The Questioning of Brett Kavanaugh
One small thing is that you decided to start questioning directly Kavanaugh—
Yeah, Ms. [Rachel] Mitchell, yeah.
—instead of using the woman prosecutor.What motivated you?
OK.So Ms. Mitchell did a good job.All of the conservatives—I mean, what are you going to do, just go after Dr. Ford?Clearly something happened somewhere, sometime.I think Ms. Mitchell, walking her through her testimony about what she couldn’t tell us and about some inconsistencies respectfully was the way to do it, finding out about the polygraph, and maybe some political manipulation of Dr. Ford by others.The bottom line was, that’s what I was hoping she would do.Dr. Ford did not have to be mistreated for us to get our side of the story out, so to speak, in terms of the accusation.
When it came time to go to questioning Kavanaugh, it was pretty clear to me where my Democratic colleagues were going, and Ms. Mitchell was not ready for this.She’s a trained prosecutor to walk people through factual scenarios and point out inconsistencies.She’s not a political person.The questioning of Kavanaugh had nothing to do with the facts.It had everything to do, in my view, about going after him as a person.
And what got me, what pissed me off the most, is when one of my colleagues asked Justice—Judge Kavanaugh: “If you’ve got nothing to hide, ask to extend this investigation.Voluntarily extend this for a couple more weeks so we can talk to everybody who’s ever known you about anything.”And I thought that was so unfair.This is not the Soviet Union.And the guy’s had his life destroyed.So you're going to hold it against him because he doesn’t want to extend the investigation?He’s already had six background checks.That really pissed me off.
Mitch McConnell and the Courts
Last thing from me.Leader McConnell has, for 30 years or longer, seen the judiciary as an essential, very important—
It’s a big political prize.
A huge prize.
Both sides have.
He knows this is his legacy.
Yeah. And he says it openly.
So what did this vote, the fact that he was confirmed, what did this mean to Mitch McConnell?
Well, I think it meant a lot to President Trump.Let me tell you, if the Republican Party had not stood behind Kavanaugh, we’d be eaten alive by the people who expect us to fight for our judges.I cannot tell you the grief I got for voting for Sotomayor and Kagan.Like I'm betraying the pro-life movement.I am pro-life, but I expect a Democrat president to pick somebody I wouldn’t pick.I've never had an issue as a litmus test.I looked at qualifications.I've tried to do it.[Strom] Thurmond (R-S.C.) votes for Ginsburg, my predecessor.[Fritz] Hollings, Democrat senator from South Carolina, votes for Scalia.Clearly they don’t have the same philosophy.They just recognized qualifications.
So I've been trying to hold onto this ever since I've been here, and it’s slipped away.I want everybody watching this documentary to know that the qualification test is over, dead and buried; that I like Mitch McConnell, but he didn’t vote for Sotomayor and Kagan.I like Chuck Schumer (D-N.Y.).He’s never voted for a Republican nominee since he’s been here.They politicized the court.I guess we all do it.The filibustering of Bush’s judges—I was in the Gang of 14 with Sen. [John] McCain (R-Ariz.) trying to break that filibuster, that you shouldn’t filibuster a judge unless there's an extraordinary circumstance.That held for about six years.
In 2013 Harry Reid (D-Nev.) changes the rule for circuit courts: You just need a majority.In other words, you don’t need a Republican to get a Democratic nominee confirmed.What does that mean over time?That the nominees would be more ideological.So if you're watching this show, and you want to know what's going to happen over time, we don’t need one Democrat now to confirm a judge.What does that mean?The temptation to pick somebody more ideological is real, because you don’t need to reach across the aisle.So over time, you're going to have more ideological judges, just by the nature of the selection process.I think the biggest loser in all this is going to be the judiciary, over time.
The partisanship of the Congress is shifted to the courts?
Yeah.The—The selection process that, if I don’t have to get one Democratic vote, then that’s going to be different than if I did.Vice versa.So reaching across the aisle kind of moderates things.When that’s taken off, the only thing left is the ABA [American Bar Association] and some outside groups telling us about the quality of the nominee, and people within the party, to make sure we don’t put unqualified ideologues on the court.So what I worry about is some bombastic young judge out there trying to appeal to the hard left and the hard right to be the darling based on attitude rather than qualifications.That’s where this thing could go.
Mike, what are we missing?
Donald Trump’s List of Nominees
How important, during 2016, was the list of judges that Donald Trump gets?
It was hugely important, because people didn’t really believe he was a Republican.You know, Donald Trump came out of nowhere to win the primary.He beat me and everybody else.But he was not a Republican in the sense that most of us understand the word to be.He really hadn't participated much in the party.Bottom line, his judicial philosophy, what he saw to be a conservative judge, was unknown.So when [we] got this list, which is a really good list—and where does it come from?It comes from conservative groups who follow the record of judges at the lower court.
Now, where does a Democrat get their picks from?They have liberal groups.They have people who are—that follow the courts.Sotomayor and Kagan had been groomed for a long time.Very good picks.Roberts and [Samuel] Alito, Gorsuch and Kavanaugh had been groomed for a long time.So he got input from reliable conservative groups.And when he put that list out, it made everybody feel better on the conservative side, if he were our nominee, then he’s not going to do something crazy.
It got him elected.
I think it helped get him elected, because it reassured people.Now you’ll pick somebody that turns out to be different than you thought they would be. [David] Souter. That happens.Judges go their own way.They're lifetime appointments.But at the end of the day, most Republicans have a network that they look at to get nominations.Most Democrats have the same network on the other side.When it comes to <i>Roe v. Wade</i>, [Hillary] Clinton said, “I'm going to find people to uphold it.”You know, Trump says, “This is a bad decision; it needs to be repealed.”Everybody running for president, as a Democrat and Republican, will always talk about judges in terms of <i>Roe v. Wade</i>.
Changing the Norms of the Nomination Process
Just to go back really quick to the very first hearing, where [Chuck] Grassley (R-Iowa) gets about 13 words in, and the Democrats start interrupting and they’re saying the process is broken, that this is basically the Republicans pushing this through before the election, we’re not getting anything that we need.What's going on at that moment, aside from all the protesters, but inside the committee?
Great question.A real anxiety from the Democratic base that we’re going to lose the Kennedy seat.Everybody thought Hillary would win, including me.She didn’t win.Then everybody freaks out, because Kennedy decided to retire when a Republican could replace him.He was a very centrist judge, but he is a Republican, and I know he wanted to be replaced by a Republican.So when he steps down, Donald Trump gets to pick, and everybody on that side is freaking out.And they're trying to delay the hearing, hold it over to 2020.That’s what they said.
The pressure on my colleagues over there had to be immense, had to be immense on Schumer: Use every tactic you can use.But unfortunately for them, in 2013, they started the process to change the rules and then really had no bullets to shoot.So this was frustration.It was a bit of posturing, genuine frustration.And some people on this committee were looking for that moment to elevate them, in terms of their future aspirations.To say otherwise is ridiculous.I mean, you're—if you're thinking about being the Democratic nominee down the road, if you can land a blow here, this is probably a pretty good thing for you.
Dems, compared to Republicans, in the understanding of the importance of the judiciary, the way Obama was outplayed by McConnell, the fact that they didn’t put forth the nominees that they wanted.
You can't blame Mitch for—you know, we had a Republican Senate, Democratic president.The primary was already started.We were picking new nominees.Biden asked Bush 41, “Wait until after the election.”But here is what I don’t understand.I don’t understand why they left so many vacancies.I'm telling you, that ain't going to happen with Mitch.We’re going to fill these vacancies as fairly as we can.But Justice Ginsburg—I mean, she’s an icon to many people in this country.Incredibly talented.I just disagree with her judicial philosophy, but she’s led a consequential life.How many Democrats wish she had stepped down?And all I can say is, I don’t know why they left so many vacancies unfilled.
The Democrats will say because the manipulations of the rules and the norms by McConnell.
B.S. They changed the rules.All they needed is a majority vote.And we did a consent decree before they changed the rules to limit debate for judges to two hours, not 30 hours.So then they went and changed the rules anyway.All I can say is at the time he changed the rules, there were about 30 judges or less pending.It wasn’t a backlog on the floor; there was just a lot of unfilled vacancies.That’s not going to happen here.
My last question—Leader McConnell says that holding open the Scalia seat was the most important decision he made in his political career.What do you make of that?
Well, I think—I think he’s proud of the fact that he looked into the traditions of the Senate and used them.And I'm sure, if the shoe were on the other foot, it will happen exactly that way if the other side was in the same situation.But he didn’t do anything dirty.He didn’t change the rules.He just looked at the history of the Senate.When a vacancy occurs in a presidential year, that’s just the way it’s been for 100 years.
The point you make about the Obama years, a lot of unfilled vacancies, I think it's fair to say that President Trump and Mitch McConnell are not going to make that mistake.
Anything we missed?Any statements that you think are very important for people to understand about what's going on, whether the damage to the process of the courts?
I don’t know how to do a cease-fire.If I could find a way to do it, I would.Not good.The votes about judges is no longer about the quality of the judge; it’s about your political future.Most of us have one thing to worry about, and that’s the primary.Most of us are not in swing states.I just feel like the judges, over time, are going to become more ideological when you don’t have to reach across the aisle to get the votes you need.
But here is the thing that does keep me up at night.What the hell happens if you’ve got a Democratic president and a Republican Senate, or vice versa?
Have fewer candidates.
I don’t know what you do when you have the opposite party in charge of the Senate, and all you need—you’ve got to get 50 votes, and they're in charge.I don’t know how you fix that.That may be the moment that gets us back to talking to each other, because the public cannot—will not tolerate a president being denied the ability to pick a Supreme Court justice, which comes with the power of being president.So let’s just put the burden on my party.So you’ve got a Democratic president down the road and a Republican Senate.There are 53 of us.If we deny that Democratic president the ability to fill a vacancy, I think we do so at our own peril.My hope is that the public will come to our aid and punish us if we get too cute by half.
Or the public loses faith in the courts.
There's a lot of bad things that could happen.The rules were there for a long period of time for a good reason.But when it comes to judges, it’s white-hot.
Latest Interviews
Latest Interviews
Policies
Teacher Center
Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation
Koo and Patricia Yuen
FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Additional funding is provided by the Abrams Foundation; Park Foundation; the John D. and Catherine T. MacArthur Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
