Graham 'hell bent' on filling next Supreme Court vacancy with conservative justice, amid Ginsburg health woes

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Sen. Lindsey Graham on whether Congress can end the stalemate over the partial government shutdown

Republican Senator Lindsey Graham, chairman of the Senate Judiciary Committee, weighs in on 'Fox News Sunday.'

South Carolina Republican Sen. Lindsey Graham told "Fox News Sunday" that he is "hell-bent" on ensuring that the next Supreme Court vacancy -- whether it is ailing Justice Ruth Bader Ginsburg's seat or otherwise -- is filled by a conservative, regardless of what outrage follows from the left.

Graham, the new chairman of the Senate Judiciary Committee, emphasized that former Democratic Sen. Majority Leader Harry Reid eliminated the Senate filibuster for federal appellate judicial nominees in 2013. Republicans later retaliated by eliminating the filibuster for Supreme Court appointments, meaning that a simple majority -- rather than a 60-vote supermajority -- is sufficient to confirm new Supreme Court nominees.

"My Democratic colleagues felt when they were in charge we should confirm judges by a majority vote," Graham told Fox News' Chris Wallace. "They changed the rules to accommodate President Obama. They tried to stack the court. They never thought [Hillary] Clinton would lose. So what you’re gonna have is Harry Reid’s and Chuck Schumer’s desire to stack the court on their Democratic watch has come back to haunt them."

Ginsburg will miss next week’s Supreme sessions and work from home, but her recovery from early-stage lung cancer surgery remains "on track" and no further treatment is needed, the court announced Friday. The 85-year-old’s absence this past week from oral arguments -- her first since joining the bench -- after her surgery in December sparked speculation about a possible departure and led to low-key planning by the White House for that scenario.

Following the contentious confirmation hearings of now-Associate Justice Brett Kavanaugh, which were marked by a series of lurid, uncorroborated sexual misconduct allegations, Graham asserted that there would be "pushback from the left" regardless of whom Trump nominates.

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"If there is an opening, whether it’s Ginsburg or anybody else, I will urge the president to nominate a qualified conservative and hopefully those people will get through – that person will get through," Graham continued. "And I expect it to be along party lines, and this is what happens when you change the rules. This has come back to bite ' em. I predicted it would. And we’ll see. I hope Justice Ginsburg serves for a long time. But if there’s an opening on this court, I’m going to be hell-bent to put a conservative to replace whoever steps down for whatever reason."

Pressed by Wallace as to whether it was appropriate to nominate a conservative to replace a liberal icon like Ginsburg, Graham again said liberals have only Reid to blame -- and he suggested Kavanaugh's treatment meant that all bets are off.

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"They should’ve thought of that before they changed the rules," Graham responded. "They tried to destroy conservative judges. I voted for [Sonia] Sotomayor and [Elena] Kagan, understanding what I was getting, so this decision by Reid and Schumer may come back to haunt them, but I am dead set on making sure it is a conservative nominee. And elections have consequences. The rules of the Senate were changed not by me, by them, and we had to do it on the Supreme Court because they would not give us any votes to nominate anybody. And Kavanaugh was a fine man, they tried to destroy him. All this is going to come back to haunt them one day."

He added: "We don't need one Democrat to replace a liberal justice. And the reason that that's the case is because of what Harry Reid did. What he set in motion."

Separately, Graham asserted that President Trump is still ready and willing to make a deal with congressional Democrats to end the ongoing partial federal government shutdown, although the window is rapidly closing.

Graham suggested that the White House would likely approve a compromise that extended protections afforded to Temporary Protected Status (TPS) recipients who fled natural disasters, in exchange for funding for Trump's proposed border wall.

On the 20th day of a partial government shutdown, federal employees rally at the Capitol to protest the impasse between Congress and President Donald Trump over his demand to fund a U.S.-Mexico border wall, in Washington, Thursday, Jan. 10, 2019. (AP Photo/J. Scott Applewhite)

"I just talked to him about thirty minutes ago -- he says, 'Let's make a deal,'" Graham told host Chris Wallace. "The plan is to do a deal. He is willing, in my view, to do wall-plus. Funding for the wall that we desperately need, that's been done in the past  -- see if we can do a deal around the TPS recipients. There's about 400,000. They're going to lose their legal status soon. He's willing to extend that."

Graham added that Trump would be willing to offer work permits to recipients of the Obama-era Deferred Action for Childhood Arrivals (DACA) program for those brought to the U.S. illegally as children -- a compromise the White House had backed last summer. However, Graham noted, Trump's planned rescission of the DACA program is working its way through the appellate court process, as several federal judges have ruled that the White House violated federal administrative law by ending DACA without offering legally sufficient notice or justification. (The Trump administration has primarily argued that DACA was unconstitutionally enacted by Obama's unilateral order.)

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"The DACA recipients, they’re all tied up in court, but I think he would give them work permits for three years, one-time renewable, if he could get wall funding." Graham said. "I don’t want to speak for the president. I don’t want to lock him in. But I’m confident what I just described with a few other things would be a deal acceptable to the White House and a lot of Democrats, and I’m just so frustrated we can’t get in a room and hammer it out."

Graham on Friday urged Trump to invoke his presidential emergency powers to immediately begin construction of the wall without congressional approval.   The White House last week directed the Army Corps of Engineers to look at possible ways of funding border security, including potentially through the reallocation of unspent disaster relief funds, in a possible sign the administration is moving in that direction.

"What's [Trump] supposed to do, just give in? He's not gonna give in."

— South Carolina Republican Sen. Lindsey Graham

The South Carolina senator told Wallace he's not worried about Democrats similarly invoking a state of emergency to bypass Congress, both because they would have a weaker legislative argument and because Republicans would likely be more willing to compromise to achieve a compromise solution.

Challenged by Wallace for his criticism of President Obama's use of executive authority to enact DACA as "presidential overreach," Graham responded that no emergency was declared to enact DACA. Should the White House move forward with an emergency declaration, it has a handful of legal routes to take. The National Emergencies Act grants the president broad authority to declare emergencies, and several federal laws then could clear a path for the White House to move ahead with building a wall.

A migrant from Honduras holds his daughter while Border Patrol Officers look at them before they jump the border fence to get into the U.S. side to San Diego, Calif., from Tijuana, Mexico, Thursday, Jan. 3, 2019. Discouraged by the long wait to apply for asylum through official ports of entry, many migrants from recent caravans are choosing to cross the U.S. border wall and hand themselves in to border patrol agents. (AP Photo/Daniel Ochoa de Olza)

One statute, 33 U.S. Code § 2293 - "Reprogramming during national emergencies," permits the president to "apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense."

Another law, 10 U.S. Code § 2808 - "Construction authority in the event of a declaration of war or national emergency," permits the secretary of defense, in a presidentially declared emergency, to use "funds that have been appropriated for military construction" for the purpose of undertaking "military construction projects."

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Graham said reasonable Democrats -- including Delaware Democratic Sen. Chris Coons, who spoke to Wallace later on "Fox News Sunday" and suggested he is open to negotiation on the border wall -- would be willing to make a deal without forcing Trump to use those emergency powers. ("I agree with the advice that Lindsey Graham just gave to the President which is that he should reopen the government and we should spend several weeks negotiating over what we can all agree on," Coons said. "I personally don’t think that a border wall is .... immoral.")

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But, Graham said, House Speaker Nancy Pelosi -- who has called the wall an "immorality" -- has unreasonably cut off negotiations by saying she would not give more than one dollar to Trump's wall under any circumstances.

"Every Democrat that I've worked with for about 10 years now has agreed to funding for barriers/walls on Obama's watch, on Bush's watch, and all of a sudden it's a bad thing on Trump's watch," Graham told Wallace. "What's [Trump] supposed to do, just give in? He's not gonna give in."

Graham concluded with his own possible last-minute fix to the partial federal government shutdown, which became the longest in the nation's history on Wednesday.

"I would urge him to open up the government for a short period of time, like three weeks, before he pulls the plug," Graham said. "See if we can get a deal. If we can’t at the end of three weeks, all bets are off. See if he can do it by himself through the emergency powers. That’s my recommendation. But I think the legislative path is just about shut off because Nancy Pelosi, the leader of the House, said ‘Even if you open up the government, I’ll give you one dollar for the wall.’ As long as that’s the case, we’re never gonna get a legislative package, no matter what the Senate does."