I’ve argued before against the presumption, peddled relentlessly by journalists like David Brooks, that there’s something intellectually high-minded about bridging partisan divides. Zealously bipartisan politicians may sometimes perform a valuable public service by brokering compromises that take divisive issues gumming up the works of public decision-making off the table. Think, for example, of the way the compromise on judicial filibusters brokered by the Gang of 14 kicked the ball far enough down the road to enable the Senate to do its work. But bipartisans usually aren’t in the business of forging intellectually compelling syntheses out of competing partisan positions.
That’s not what bipartisanship is for. Properly understood, it’s a technique for brokering compromises that facilitate the satisfaction of preferences when ideological polarization is keeping the political process from reaching an equilibrium. So, pace Howard Fineman, Graham’s underlying ideological conservatism doesn’t make his bipartisanship any less authentic. What makes Graham an exemplary bipartisan is his believing more insistently than most of his senate colleagues that “a foolish [ideological] consistency is the hobgoblin of little minds.” That, depending on your point view, is something either to celebrate as worldly pragmatism or to deplore as unprincipled opportunism.
Graham's vote for Kagan, however, is something entirely different. He voted for Kagan (just as he voted for Justice Sotomayor) not because her judicial philosophy conforms to his own, but because he doesn't think that, institutionally speaking, her judicial philosophy is any of his business. In each case, he was upholding a standard of confirmability that used to be honored across the partisan divide: viz., that a president is entitled to a measure of deference from the Senate when it comes to staffing the courts. When he was floor manager of Thurgood Marshall’s Senate confirmation in the 1960s that excited the determined opposition of southern segregationists, Ted Kennedy was one of that principle's most eloquent champions:
Kennedy neglected to mention that this was the operative standard for Senate confirmation just a few years later, however, when Nixon nominated Clement Haynsworth and Harrold Carswell to the Court, and he’d forgotten about it entirely by the time Reagan nominated Robert Bork in 1987.“[I]n advising and consenting . . . we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee. . . . [I]t is not our responsibility to test out the particular philosophy, whether we agree or disagree, but his own good judgment, and being assured of this good judgment, that we have the responsibility to indicate our approval or, if we are not satisfied, our disapproval” (Quoted in Benjamin Wittes, “A Little Less Conversation,” New Republic, November 29, 2007).
At some political cost to himself, Graham is now upholding the same standard of confirmability from which most his colleagues retreated in the face of political pressure. As Chris Cillizza notes, voting for Kagan virtually guarantees that he'll face a primary challenge in 2014:
You may think that the idea of senatorial deference to presidents’ judicial appointments never was, or no longer is, a civic norm worth upholding. And you may well doubt that following it is a recipe for satisfying more political preferences in the case of the Kagan nomination. But it’s hard to see Graham’s determination to stand against the political pressure to uphold it as anything other than an act of principled citizenship.“Graham's apostasy on Kagan comes after other high profile breaks with conservatives in his state (and nationally) over climate change and immigration reform and will likely make him a central target of those tea party Republicans who helped oust Utah Sen. Bob Bennett in his bid for renomination earlier this year.
"’It's no longer a question of 'if' but 'who' and 'how many',’ said one South Carolina Republican operative about a Graham primary challenge. The source added that Graham's approach on high profile issues of late is ‘putting Lindsey's friends and supporters in a really tough place.’"