Biden, a veteran of Supreme Court fights, ponders his own historic pick
By Carl Hulse and Katie Rogers
President Joe Biden is staying up late in the White House residence, poring over the biographies of four potential Supreme Court nominees and cases they have decided.
He is reaching out to Republican senators, seeking their views on whom he should pick and gauging their willingness to back a Democratic president’s choice.
He retreated to Camp David for a weekend Supreme Court cram session, and he plans to begin personally interviewing candidates this week.
Biden, who led the Senate Judiciary Committee for a dozen years and is a veteran of high court battles, is probably the most experienced president ever when it comes to filling a Supreme Court vacancy, having cast his first vote for a justice in 1975. He has also been a central figure in the transformation of the Supreme Court confirmation process from somewhat staid affairs to brutal partisan clashes.
Now, he is trying to bring that knowledge to bear as he makes his own historic choice of the first Black woman to be nominated to serve on the high court, a selection that will be a significant element of his presidential legacy.
Whether all that personal history pays off will become evident within the next two weeks if Biden sticks to his timeline of disclosing his choice before the end of the month, touching off a Senate process that has become one of the capital’s most closely watched rituals.
“This is a committee that Joe Biden knows so well,” said Sen. Dick Durbin, D-Ill., chair of the Judiciary Committee, who will be presiding over a Supreme Court confirmation for the first time. “He chaired it. He lived in this committee. He has been through so many battles, and he understands what we’re facing.”
As the panel’s chair in 1987, Biden led the charge against President Ronald Reagan’s nomination of Judge Robert Bork, whose slash-and-burn confirmation hearings set a precedent for later confirmation fights.
And in 1991, he presided over explosive hearings to confirm Justice Clarence Thomas. Those hearings featured sexual misconduct charges that left some accusing Biden and his all-white, all-male committee of having mistreated Anita Hill, who had accused Thomas of sexual harassment. Biden has since expressed regret to Hill.
Biden was vice president when Republicans took things to yet another level, blockading President Barack Obama’s nominee, Merrick Garland, in 2016. Biden was seeking the presidency four years later when Republicans rushed through President Donald Trump’s pick, Justice Amy Coney Barrett, in record time.
Now, with his court selection looming, Biden has tried to lower the partisan temperature, build consensus and move more deliberately than has been the case in recent nominations.
During a private White House session Thursday evening, Biden told Durbin and nine other Democrats on the Judiciary Committee of his strong desire to win bipartisan backing for whomever he puts forward — and to avoid the rancor that has surrounded recent hearings — although he added that such an outcome was not a necessity.
The president said he hoped to begin speaking face-to-face with potential nominees next week, in keeping with his plan to announce his choice by the end of the month. He told senators that he had begun reviewing the backgrounds of at least four candidates, although he mentioned no names.
Democrats who discussed the pick with Biden on Thursday said that as he ponders who should succeed Justice Stephen Breyer, he wants someone who has demonstrated legal excellence, strong character and the ability to persuade not only the other members of the court — which tilts 6-3 in favor of conservatives — but members of the public as well.
“Someone in the model of Justice Breyer, someone who will write stirring, compelling, lasting arguments — hopefully in the majority at some point, but probably, in the coming few years, in the dissent,” said Sen. Chris Coons, D-Del., describing the criteria that Biden laid out during the meeting.
Multiple Democrats said the White House’s ability to identify highly qualified judicial nominees and conduct thorough background reviews has already been demonstrated with the confirmation of a record 40 judges in the president’s first year, despite an evenly divided Senate.
“A number of us commented on how well he has done on nominations,” said Sen. Richard Blumenthal, D-Conn. “They have experience, and they know where the traps are and where they ought to look, so the nominees they have vetted are pretty much bulletproof, even though Republicans may still try to attack them.”
Biden is not the only one involved who knows the confirmation process inside out, and Republicans will not be pushovers, even as they weigh how aggressively to attack a Black female nominee.
Sen. Chuck Grassley of Iowa, the senior Republican on the Judiciary Committee, presided over two of the most recent hearings and has taken part in more than a dozen other Supreme Court confirmations along with hundreds of deliberations for lower-court posts.
“There is no one more experienced or savvy on judicial nominations,” said Garrett Ventry, a former senior adviser to Republicans on the Judiciary Committee.
During his 36 years in the Senate, Biden, a lawyer by training, presided over six Supreme Court confirmation hearings, including the extremely contentious clashes over Bork and Thomas, and he participated in about a dozen more. Biden is also surrounded by others on his staff who have deep expertise in judicial confirmation fights.
Biden and his team seem intent on restoring a measure of bipartisanship and dignity to the Supreme Court confirmation process — a goal some Republicans say they share.
Republicans say the key to drawing their support will not be in the outreach, but in the nominee herself. Sen. Lindsey Graham, R-S.C., said the president could make a selection in line with the moderate image he emphasized in his campaign — or he could move to the left and risk losing the backing of most Republicans. Graham is a leading voice in support of a U.S. District Court judge from his state, Michelle Childs.
“If you want 60 or more votes, you go with her,” Graham said of Childs. “If you want to play the politics of the left, you go with somebody else.”
Also believed to be on Biden’s shortlist is Judge Ketanji Brown Jackson, a former clerk for Breyer who won the support of Graham and two other Republican senators when Biden elevated her last year from a district court seat to the U.S. Court of Appeals for the District of Columbia Circuit. Another prospective candidate is Justice Leondra Kruger of the California Supreme Court, who served in the Obama administration and has many of the qualifications typical of nominees.