Published July 13, 2026
The news early Sunday morning that Senator Lindsey Graham passed away was shocking. He was an institution in the Senate and in American politics writ large. It’s worth taking stock of his role in judicial nominations. (I was his chief counsel for nominations for about a year and a half when he was chairman of the Judiciary Committee.)
Graham was himself a lawyer. An Air Force JAG who retired as a colonel in 2015, he was also in private practice in South Carolina until he got into politics, entering the House in the Republican Revolution of 1994 and making a name for himself as an impeachment manager of Bill Clinton. In 2002 he replaced Strom Thurmond in the Senate.
His time as a trial and Air Force lawyer colored his view of the judiciary for many years. His ideal judicial nominees were experienced lawyers with lengthy public service. This is why he was a staunch defender of failed Fifth Circuit nominee, Judge Sul Ozerden, during the first Trump administration (Ozerden was a sitting judge and a naval aviator) and was blown over by Judge Peter Phipps on the Third Circuit (Phipps had spent decades in the Federal Programs Branch of DOJ).
As a general matter, ideology or jurisprudence didn’t have a lot to do with it for him. He wanted competent judges and gave presidents of both parties considerable leeway in their choices. This is probably why his first major foray into judicial nominations was the 2005 “Gang of 14” which split the baby on George W. Bush’s circuit nominees, allowing some of them to overcome a filibuster while icing others — all in order to prevent Majority Leader Bill Frist from exercising what he called the “constitutional option” and Democrats called the “nuclear option.” It’s also why he voted for Sonia Sotomayor and Elena Kagan without hesitation: They were qualified, and the president deserved his picks.
The same was true of Sam Alito. Not long after the Gang of 14, President Bush nominated Alito to the Supreme Court. Democrats, left with little with which to hit him, focused on his possible membership in an organization, Concerned Alumni of Princeton, to paint him as a racist. After rounds of questioning smearing Alito by association, it was Graham’s turn. His trial-lawyer instincts always at the ready, he asked Alito if he was a racist. Alito’s wife, Martha Ann, was sitting behind him and hit her limit, bursting into tears and running out of the room. It so effectively ended that line of attack on Alito that Joe Biden showed up the next day wearing a Princeton cap.
Graham’s keep-politics-out-of-it position grew harder to maintain as the judicial wars escalated. Loyal to his party, when Harry Reid, in turn, exercised the nuclear option to stack the D.C. Circuit in 2014, Graham tended to vote with Republicans against cloture on Obama judicial nominees, in protest against Reid’s actions. In 2016, when Mitch McConnell decided that Merrick Garland wouldn’t even get a hearing in the Judiciary Committee, Graham went along with it. And when, a year later, McConnell finished off the filibuster on Supreme Court nominees, Graham backed that move as well. After all, if they’d filibuster Neil Gorsuch, they’d filibuster any of President Trump’s picks.
In the first 18 months of the Trump administration, Graham supported the president’s picks. He went along with McConnell’s plan to eliminate circuit blue slips. He let the president nominate two great judges to the Fourth Circuit, Jay Richardson and Marvin Quattlebaum. The only area where he disagreed with his Republican colleagues was on the role of the American Bar Association in the judicial confirmation process. While most Republicans viewed them as hopelessly biased, Graham — again, former southern trial lawyer that he was — thought there was some value in their peer reviews.
This all changed in October 2018 when Democrats launched their vile sneak attack on Judge Brett Kavanaugh. Recall that Kavanaugh’s hearing effectively took place in two phases. The first phase was about Kavanaugh the judge and the Bush-administration official. There were tedious fights about documents and his record but Republicans held firm and Kavanaugh aced his hearing.
The second phase began when the allegations from Christine Blasey-Ford were leaked by Democrats to The Intercept. Thus began an ever-growing and increasingly outrageous series of smears against Kavanaugh, from college debauchery to gang rape to piracy. Graham, ever the trial lawyer, wasn’t having it. But this presented a problem: To get Kavanaugh out of Committee, Republicans needed then-Senator Jeff Flake’s vote, and he was clearly troubled by the allegations against Kavanaugh. The prospect of Lindsey Graham questioning Blasey-Ford was playing with fire when it came to Flake’s vote. Indeed the entire Republican side of the Committee was men, half of whom would be extraordinarily uncomfortable questioning the witness while the other half would be perhaps too comfortable. The decision was therefore made to bring in Rachel Mitchell, an accomplished rape prosecutor from Phoenix, as special counsel to conduct the questioning.
Mitchell’s questioning of Blasey-Ford was professional, understated, and effective in building the argument that her allegations did not hold up. The trouble was that Kavanaugh went next. Democrats went straight for his throat, of course, while Mitchell tried to get his side of the story as a prosecutor would. It was a lopsided situation.
The result was Graham’s finest hour. When it came time for him to question Kavanaugh he did it himself and gave a speech for the ages. He called out the Democrats for their outrageous character assassination. He pointed out that Chuck Schumer had said he’d try to stop Kavanaugh from the word go. He told Kavanaugh to give his regards to Sotomayor and Kagan because he voted for them but those days were behind him. It was a speech that changed the tenor and course of the hearing, getting Republicans off the back foot and ready to fight the Democrats over their unconscionable behavior. In the end, Kavanaugh was confirmed.
The next year Graham took the gavel of the Judiciary Committee. With the retirement of Orrin Hatch, Chuck Grassley had the opportunity to chair the powerful Finance Committee, so he took it, putting Graham next in line to chair Judiciary.
He did a superb job as chairman, staying true to his word in the Kavanaugh hearing. While Grassley had indeed busted a few blue slips in states like Wisconsin, Pennsylvania, and Washington, he was clearly uneasy jamming up his ranking member, Dianne Feinstein, or the Democratic Leader, Chuck Schumer. Graham had no such compunctions, especially as it related to Schumer. (When I told him that Schumer opposed a New York nominee one morning, I was greeted with expletives and the name Kavanaugh.) When the committee was marking up Lawrence VanDyke, Senator Jackie Rosen of Nevada, who opposed him, attended in an effort to shame Graham into backing down. Graham looked right at her when he explained that he was a VanDyke fan having heard from former Nevada attorney general Adam Laxalt. Rosen was furious.
The VanDyke hearing was another instance where Graham’s trial-lawyer instincts shone. VanDyke was anathema to Democrats and under constant attack for his social conservatism. Graham decided that he should share a hearing with Patrick Bumatay, the first openly gay nominee to a regional court of appeals. After the Democrats went after VanDyke, Graham took the opportunity to ask Bumatay if he knew his copanelist. Bumatay responded that they knew each other from law school and were friends. He then asked Bumatay if he would trust VanDyke to be fair and, in particular, to be fair in cases involving his family. Bumatay replied that he absolutely trusted VanDyke to do so. It completely diffused any problems VanDyke may have had among Republicans like Rob Portman and Lisa Murkowski.
Graham plowed through nominations throughout 2019, meeting his “80-20” goal for the year of 80 district judges and 20 circuits. Good thing, too, because then Covid-19 hit in 2020. The Senate still confirmed another 40 districts and four circuits in 2020, but it was slow going. That said, it was Graham’s Judiciary Committee that first got to work after the Senate had recessed following the enactment of the CARES Act. On April 3, 2020, President Trump announced that he had selected Judge Justin Walker for the D.C. Circuit, so, while most of the country was just coming out of the “Fifteen Days to Stop the Spread,” the Judiciary Committee was getting to work processing Walker’s nomination and McConnell was bringing the Senate back into session.
Walker was followed by Cory Wilson for the Fifth Circuit and then slates of (at the time) novel virtual nominations hearings. Graham only chaired one virtual hearing himself, that of Middle District of Florida nominee, Kat Kimball Mizelle. A high-value nominee, Mizelle was deemed “not qualified” by the ABA due to her youth (she was 32 at the time). Yet again, Graham’s trial-lawyer instincts took over, essentially letting every senator question Mizelle individually before turning to the rest of the panel. Surely it was not an enjoyable experience for her, but it let Graham say that she was questioned more than any other district judge in recent memory and had passed with flying colors. It was also his first experience with the remote-hearing format (about which Feinstein had been complaining for months) and he turned to us after and said, “We’re never [expletive] doing that again. I hated it.”
The highlight of Graham’s time as chairman, of course, was the confirmation of Amy Coney Barrett to the Supreme Court. Following the sudden death of Ruth Bader Ginsburg, it turns out that McConnell decided that the seat would be filled. McConnell only controlled the Senate floor, however; the decision to hold a hearing was in Graham’s hands. But Graham, perhaps recalling his admonitions to the Democrats during Kavanaugh, joined up with gusto.
He announced that there would be a hearing and that it would be accelerated to accommodate the impending elections. Democrats howled but Graham didn’t care. He made sure that the hearing would work with Covid and instructed us to make all necessary contingency plans for Democratic process shenanigans. Graham was locked in a tight reelection campaign at the time and, perhaps to his surprise, his relentless support for Barrett resonated with his voters, so he kept his foot on the gas. Barrett did a superb job and in the end even Feinstein admitted that it was probably the best confirmation hearing she had ever participated in. She was, of course, roasted by the Democratic base for saying so (in particular for giving Graham a hug after the hearing), and Graham, ever the gentleman, went out of his way in the coming weeks to make Feinstein feel welcome in her committee work.
Graham ultimately ran through the tape in his time at chairman, holding confirmation hearings well into December and ensuring that his excellent staffer, Zach Somers, got confirmed to the Court of Federal Claims.
The next Congress brought a return of Chuck Grassley to the top spot, a 50-50 Senate, and an evenly divided Committee. It also turned out that Graham just wasn’t quite ready to shed his deference to the president’s nominees. Under the organizing resolution for that Congress, tied votes in Committee required a motion to discharge on the Senate Floor. This meant that uniform Republican opposition to nominees would at least give Schumer a bit of a headache on the floor. Graham was, for a while, reluctant to do this, either voting for Biden’s nominees or voting present to prevent the tie vote. Starting with Jennifer Sung, nominee to the Ninth Circuit, Graham began to consider voting against nominees, a trend that continued as their radicalism and incompetence became more and more apparent.
Eventually he cast his first vote against a Supreme Court nominee in Judge Ketanji Jackson. Republicans knew they couldn’t stop Jackson — and, indeed, there wasn’t much of a point in doing so because it wasn’t as if Biden would nominate someone better next, like Justice Leondra Kruger or Judge Michelle Childs. But they decided they did need to put up a fight. McConnell supported such a fight enthusiastically but made it clear that he wanted it based on her judicial record and jurisprudence.
As a result Grassley’s staff scoured her record and found an alarming consistency in her sentencing: Low sentences in cases involving child sexual abuse material (CSAM). They dug into those cases and found a shockingly empathetic judge in sentencing transcripts. Committee Republicans, therefore grilled her on the topic. Upon learning about Jackson’s record here, Graham was horrified and did the same. Jackson was not prepared for the line of questioning and, in the room, seemed to take offense to being questioned at all. Graham had enough and finally voted no on a Supreme Court nominee.
In the back two years of the Biden administration that attitude carried over. Perhaps because the Committee was no longer tied and his vote no longer “mattered” on the floor, he voted no on radical Biden picks with increasing frequency. This set the stage for Susan Collins, Lisa Murkowski, and Joe Manchin to do the same, which in turn set the stage for McConnell to persuade Kyrsten Sinema to oppose nominees. This allowed Trump to flip three circuit seats. That wouldn’t have happened had Graham not come around fully on modern judicial politics.
Unfortunately, Senator Graham’s passing came before he could retake the gavel of the Judiciary Committee, which he was in line to do if Republicans hold the Senate. Because he had fully come around on the importance of conservative judges, he was excited to confirm as many judicial conservatives as he could in the remainder of Trump’s term. That he won’t be able to is tragic.
In the end, Graham’s central role in the confirmations of Alito, Kavanaugh, and Barrett should give him a place of honor in the history of judicial conservatism. If nothing else, a sincere pro-lifer throughout his political career, Graham put those three nails in the coffin of Roe v. Wade. His is a tremendous loss.
Michael A. Fragoso is a fellow at the Ethics and Public Policy Center in the Constitution, the Courts, and the Culture Program, where he writes and speaks on issues relating to the law, the federal judiciary, and Congress. An attorney in private practice, he served in all three branches of the federal government, including most recently as chief counsel to the Senate Republican Leader, Mitch McConnell (R-KY). His writing has appeared in The Wall Street Journal, National Review, The Harvard Journal of Law & Public Policy: Per Curiam, and elsewhere.
