White House brushing off Graham handicapping of high court choice

Sen. Lindsey Graham (R-S.C.) speaks during a press conference following the U.S. Senate approval of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in Washington, D.C. on Thursday, February 10, 2022.

Sen. Lindsey Graham (R-S.C.) has been adamant that a judge from his home state stands the best chance of winning bipartisan support for a Supreme Court opening in a narrowly split Senate, but the White House and its allies believe each of the women being considered for the role can earn Republican votes.

Graham has been championing the credentials of J. Michelle Childs, a federal judge serving in South Carolina whom the White House has confirmed is under consideration to replace the retiring Justice Stephen Breyer.

Childs also has a key backer in House Majority Whip James Clyburn (D-S.C.), who is an influential ally of President Biden's, and Sen. Tim Scott (R-S.C.) has also been complimentary of Childs.

"I have told [Biden] and his team that if you nominate Michelle Childs, she will be in the liberal camp, for sure, but she has a hell of a story," Graham said Sunday on ABC. "And she would be somebody, I think, that could bring the Senate together and probably get more than 60 votes. Anyone else would be problematic."

Graham has not ruled out supporting a different nominee, but his advocacy for Childs, who sits on the U.S. District Court for the District of South Carolina and is a graduate of the University of South Carolina, has positioned her as a potential pick who could at least win some bipartisan support in a Senate that is divided 50-50 between Republicans and Democrats.

One source close to the White House, who requested anonymity to speak candidly, said Graham's comments have fostered a narrative that Childs is the centrist pick and that others under consideration are more radical.

The discussion around who could win bipartisan votes "has gotten a little off the rails," the source said, arguing that Childs, U.S. Court of Appeals Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger could all likely earn support from moderate Republicans.

Democrats have expressed confidence that Jackson could get Republican support if Biden nominates her for the Supreme Court. Just last year, GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), as well as Graham, supported her nomination to the U.S. Court of Appeals for the D.C. Circuit.

Sen. John Cornyn (R-Texas) also voted to advance Jackson out of the Senate Judiciary Committee last year, only to vote "no" on her confirmation. Still, some advocates cited his committee vote as proof Jackson's qualifications would appeal to Republicans.

And Jackson's allies have been quick to highlight that former House Speaker Paul Ryan (R-Wis.), whose sister-in-law is married to Jackson's brother-in-law, spoke highly of the judge during her 2012 confirmation hearing to be a district judge.

Ryan, who was then-presidential candidate Mitt Romney's running mate, told the Senate Judiciary Committee his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

Kruger, who sits on the California Supreme Court, is viewed as the third likeliest choice to replace Breyer alongside Childs and Jackson. She previously served in the Obama administration but did not have jobs that required Senate confirmation, so there's no record of Republicans voting for or against her for previous roles.

Still, California legal experts say she's considered a centrist with a record of interpreting the law as written, something that would make her a viable pick to earn GOP support.

"It's fair to call her the median justice on a centrist court, one who looks for consensus, and who reads the law faithfully and applies it impartially without regard to what policy or position that outcome might favor or disadvantage. A neutral arbiter like that should appeal to anyone," said David A. Carillo, executive director of the California Constitution Center.

Kruger could also appeal to members of either party who are in favor of seeing at least one Supreme Court justice with time spent on a state bench rather than the federal bench.

The California Constitution Center and Hastings Law Journal in an analysis of Kruger's rulings from the state Supreme Court since 2016, which was her first full year on the bench, described her as having a moderate approach.

"Our substantive review shows that Justice Kruger in general reaches results that are evenly distributed among liberal and conservative positions, and that those results flow from a neutral approach to reading the law," the analysis stated.

With the Senate split 50-50, and with Sen. Ben Ray Luján (D-N.M.) away from Washington, D.C., for at least a few more weeks while he recovers from a stroke, much of the focus on Biden's eventual pick has been on whether the individual can win over any Republicans to ease her path to confirmation.

But White House press secretary Jen Psaki earlier this month dismissed the idea that Biden was seriously weighing which candidate was most appealing to Republican senators.

"His focus is on picking the person who is eminently qualified, who is ready to serve and prepared to serve in a lifetime appointment to the Supreme Court, not in navigating the legislative process," she said.