Video of Lindsey Graham insisting Supreme Court vacancies should never be filled in election years goes viral

Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, is under pressure to reject any Supreme Court nominee put forward by Donald Trump to replace Ruth Bader Ginsburg – as he himself has repeatedly promised to do.

The South Carolina senator, who is currently fighting his most competitive Democratic challenger since he was elected to the chamber in 2002, has previously voted for nominees put forward by presidents of both parties.

However, in 2016, he joined the Republican boycott of Merrick Garland, the man Barack Obama nominated to replace Antonin Scalia. The Republican senate leadership justified their refusal to take up the nomination on the basis that in an election year, it should be for the next president to decide who to pick.

Many of them referred to this as the “Biden rule”, invoking a 1992 floor speech by then-senator Joe Biden in which he said that because of the intense acrimony that had erupted around several of Ronald Reagan and George H. W. Bush’s nominees, the Senate should wait until after that year’s election to take up any nominations.

There was no Supreme Court vacancy to be filled when Mr Biden spoke; the so-called Biden rule has no basis in written law or codified Senate procedure, and until 2016, the circumstances Mr Biden described did not arise until 2016.

At that point, facing the possibility of a relatively liberal justice filling the seat left by the hardline conservative Scalia, Republicans cited Mr Biden’s informal precedent to hold out until after the election, and Mr Garland’s nomination was scotched.

At a meeting of the Republican-controlled judiciary committee, Mr Graham spoke at length about the Republicans’ pretext for obstructing the president.

“Why do I feel comfortable doing this? The history of the Senate is pretty clear here. [Mr Biden] in 1992 argued for what we’re doing. [Mr Obama] filibustered two Republican Supreme Court justices ...This is the last year of a lame duck president. And if Ted Cruz or Donald Trump get to be president, they’ve all asked us not to confirm or take up a selection by president Obama.

“So if a vacancy occurs in their last year of their first term, guess what? You will use their words against them. I want you to use my words against me. If there’s a Republican senator in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said let’s let the next president, whoever it might be, make that nomination, and you can use my words against me and you’d be absolutely right.  

“We’re setting a precedent here today, Republicans are, that in the last year – at least of a lame duck eight-year term, I would say it’s gonna be a four-year term – that you’re not gonna fill a vacant seat of the Supreme Court based on what we’re doing here today. That’s gonna be the new rule.”

He also recorded a video for Twitter in which he described telling Mr Garland personally that the next president should be allowed to fill the seat.

Even since Mr Trump was elected and Mr Graham metamorphosed from one of the president’s harshest critics into one of his most caustic and dogged allies, the senator has reiterated that the last year of a president’s term is no time to take up a Supreme Court nomination.

During a public discussion with the Atlantic’s Jeffrey Goldberg in 2018, he described why he had voted for Mr Obama’s nominees Sonia Sotomayor and Elena Kagan but not Mr Garland, explaining that he was doing what he thought was the “traditional” thing to do

“Justice Scalia dies in 2016. The primary process is ongoing. And if you look back at 100 years, no one has been replaced under that circumstance. If you listen to what Joe Biden said in Bush 41, you should hold it over to the next election. Joe is right a lot. So I felt like I was doing the traditional thing when it came to Sotomayor and Kagan, I thought I did the traditional thing.

“Now I’ll tell you this. This may make you feel better but I really don’t care. If an opening comes in the last year of president Trump's term and the primary process is started, we will wait to the next election. And I’ve got a pretty good chance of being the judiciary –”

“And you’re on the record?” asked Mr Goldberg.

“Hold the tape,” Mr Graham replied.

That exchange has already been turned into an ad by LindseyMustGo, a campaign group working to unseat Mr Graham in his race against Democrat Jaime Harrison. The group’s videos have often focused on Mr Graham’s changing positions, particularly on Mr Trump, whom he once called “a race-baiting, xenophobic religious bigot”.

While South Carolina Senate races are usually not close, some polls have shown the race to be far tighter than usual – and possibly even a toss-up.