THE MITT ROMNEY-LINDSEY GRAHAM FLIP-FLOP. There’s a lot of hypocrisy in the United States Senate. It’s virtually built into the place. To cite just one example, the filibuster is something many senators support when they are in the minority and oppose when they are in the majority. Somehow, a good thing becomes a bad thing when the other party uses it.
Judicial nominations are another example. In the Judiciary Committee and the full Senate, both parties use blocking and delaying tactics against an opposition party’s nominees that they decry when they are used against their own party.
And then there is the Supreme Court nomination of Ketanji Brown Jackson. President Joe Biden’s choice for the Supreme Court is headed to Senate confirmation this week. As expected, Jackson will have the vote of all 50 Senate Democrats plus, apparently, three Republicans: Sens. Susan Collins, Lisa Murkowski, and Mitt Romney. So unless something changes, Jackson will win with 53 votes.
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This is Jackson’s second confirmation in less than a year. On June 14, 2021, just 10 months ago, the Senate confirmed her to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, often seen as a steppingstone to the Supreme Court. In that decision, Jackson also got 53 votes: all 50 Democrats, plus GOP Sens. Collins, Murkowski, and Lindsey Graham.
So Collins and Murkowski voted consistently on Jackson — they thought she was qualified for the appeals court, and thus voted to confirm her, and they will vote to confirm her for the Supreme Court. But two Republicans, Romney and Graham, have changed their positions over the last 10 months. In June 2021, Romney believed Jackson was not qualified for a seat on the U.S. Court of Appeals, but now, in March 2022, he believes she is qualified for a seat on the Supreme Court. In June 2021, Graham believed Jackson was qualified for the U.S. Court of Appeals, but he now believes she is not qualified to sit on the Supreme Court.
What to make of it? Graham’s flip-flop is easier to understand. It is not unusual for a senator to vote in favor of a nominee for a lower court seat and then vote against the same nominee for a Supreme Court seat.
For example, Democratic Sens. Tim Kaine and Joe Manchin voted to confirm Trump nominee Amy Coney Barrett to the U.S. Court of Appeals for the 7th Circuit in 2017 and then voted against her nomination to the Supreme Court in 2020. Democratic Sen. Tom Carper voted to confirm Trump nominee Brett Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit in 2006 and then voted against his nomination to the Supreme Court in 2018. The Senate used a voice vote, essentially a unanimous consent, to confirm Trump nominee Neil Gorsuch to the U.S. Court of Appeals for the 10th Circuit in 2006, and then, in 2017, 45 Democrats voted against him.
There are reasons senators do that. When voting against a Supreme Court nominee whom they earlier confirmed, they can claim that they since discovered new information about the nominee that changed their mind. They can argue that the nominee did not perform well at the appeals court level. They can argue that a Supreme Court nomination is just so much more important than an appeals court seat that it requires a much higher standard. Or they can say they’re simply being partisan. No — they won’t actually say that, but that is sometimes what it is.
So now, Graham is joining those Democratic colleagues from the Trump years and voting against a nominee he once voted to confirm. Perhaps the more interesting case is Romney, who is going the other way.
Why did Romney, in June 2021, decide Jackson was not qualified for a seat at the appellate level and then, in March 2022, decide that she is qualified for an infinitely more consequential seat on the Supreme Court? As with many things Romney, it’s hard to figure out. By way of explanation, Romney is saying, in part, that he didn’t really take a close look at Jackson before, during the appeals court confirmation process, and that he has looked at her in much more depth now. And in part, Romney also appears to be saying that some of his Republican colleagues have treated Jackson disrespectfully, and he does not want to be part of that.
The best account Romney has given so far has been with Kasie Hunt, of CNN’s new streaming network. Romney told Hunt that while he thought some of his fellow Republicans asked Jackson “respectful questions,” others, who were perhaps running for president, had asked sensational, attention-getting questions designed for TV coverage.
“I thought some were preparing for their presidential campaign,” Romney told Hunt, “and were, if you will, doing the things you have to do to get on TV, which I think is unfortunate. I think any setting like this that doesn’t show respect for the witness, or in this case the judge, is not the right way for us to go. We should show, in my opinion, more respect for one another. And so sometimes the rhetoric was a little hot.”
When faced with the question of why he voted against Jackson before and will vote for her now, Romney said, “I have begun a deeper dive, a much deeper dive than I had during the prior evaluation. And in this case, as well, she’s gone into much more depth talking about her judicial philosophy than she had before. And we are, of course, looking at her judicial record, as a district judge and as an appellate judge, in far more depth than we had before.”
So Romney, unlike colleagues in both parties, is going the other way in this Supreme Court confirmation vote. Back when he ran for president in 2012, there was lots of discussion about his history of flip-flops, the most famous being his change of heart on abortion. Perhaps his Jackson vote is part of that tradition. But perhaps, along with the reasons he has given, the Jackson decision can be attributed to Romney’s desire to separate himself from his party. He wants to stand apart from much of the GOP, and with this vote, he is doing it.
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