Sen. Lindsey Graham (R-SC) questions U.S. Secretary of State Mike Pompeo during a Senate Foreign Relations committee hearing on the State Department's 2021 budget in the Dirksen Senate Office Building on July 30, 2020 in Washington, DC. (Jim Lo Scalzo-Pool/Getty Images)

Lindsey Graham: We need a ninth Supreme Court justice, because "the courts will decide" the election

"The courts will hear all of our complaints," the GOP senator says on "Fox & Friends." "The courts will decide"

Roger Sollenberger
September 26, 2020 3:38AM (UTC)

Senate Judiciary Chair Lindsey Graham, R-S.C., said in a Thursday appearance on "Fox & Friends" that the Supreme Court needs a ninth justice before the election, because the votes will be contested — and "the courts will decide" the winner.

"A four-to-four Supreme Court is not a good deal for America," Graham said. "We need a nine-person Supreme Court. And people wonder about the peaceful transfer of power — I can assure you it will be peaceful. Now, we may have litigation about who won the election, but the court will decide. And, if the Republicans lose, we will accept that result. But we need a full court, and I think that's possible before the election."


With only weeks to go, Graham seemed to suggest that the upcoming election would not be decided by the votes of the people but rather the decisions of nine Supreme Court justices.

"If you believe ballots were improperly given to people, if you believe they were improperly counted, you have a legal process. This is why we need a nine-member Supreme Court," he said. "We have the right in this country to challenge the election in the court. But here is what's going to happen: No matter who challenges the results of the election, eventually the Supreme Court is likely to hear that challenge. And, when they rule, that is the end of it."

Graham pointed to former Vice President Al Gore's concession after the Supreme Court weighed in on the 2000 election against George W. Bush as the example to follow.


"I want the American people to know that this will be a contest. There is a lot of shady things going on, but the courts will hear all of our complaints," Graham said. "The courts will decide, and we will accept the court's decision — Republican and Democrat."

"I promise you as a Republican," the senator continued, "if the Supreme Court rules in favor of Joe Biden, I will accept that result."

Graham added that his "hope" was for Trump to have "such an overwhelming victory, we don't have to worry about the courts."


Four years ago, Senate Majority Leader Mitch McConnell, R-Ky., blocked confirmation hearings for Merrick Garland, former President Barack Obama's pick to succeed the late Justice Antonin Scalia. Graham said if the same scenario were repeated in 2020 with a Republican president, he would not want that nominee to go through before the election.

"I want you to use my words against me," he said at the time. "If there's a Republican president 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."


Graham was asked later Thursday by CNN about Democratic concerns that Republicans were rushing a confirmation ahead of the election in order to influence the outcome of a court challenge to the results. He only said, "We need a full court."

The eight justices on the bench today already reflect a 5-3 conservative majority. If Trump's nominee goes through, and a challenge to the election lands in the Supreme Court, the president will have appointed one-third of the justices potentially deciding the result of his own election.


Graham has also used his recent media appearances about confirmation hearings to complain that he is "getting killed financially" by Democratic rival Jaime Harrison. This week, top election expert Larry Sabato nudged that race closer towards Harrison.

Roger Sollenberger

Roger Sollenberger is a staff writer at Salon. Follow him on Twitter @SollenbergerRC.

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