Biden has history with contentious supreme court hearings. Now he's trying to avoid one

President Joe Biden knows a thing or two about contentious Supreme Court hearings, having presided over a pair of the most heated confirmations that still reverberate in US politics. That experience is shaping the process of naming the first Black female justice in a bitterly divided Washington.

Biden led the Senate Judiciary Committee in 1987 as Democrats blocked the confirmation of Ronald Reagan’s nominee, the late conservative judge and scholar Robert Bork. It was the last time lawmakers rejected a president’s nominee to the court.

In 1991, Biden presided over the hearing for George H.W. Bush’s nominee Clarence Thomas as he faced harrowing testimony of sexual harassment allegations from his former aide Anita Hill, a Black woman whose treatment by members of the committee Biden chaired remains a sore spot with female voters 30 years later. 

Biden is interviewing candidates at the same time he’s trying to negotiate a diplomatic end to Russian President Vladimir Putin’s aggressive manoeuvring in Ukraine. And after a series of disappointments in Afghanistan, with inflation and a persistent coronavirus pandemic, the historic pledge to name a Black woman came as a bright spot. Senate Republican leaders have indicated they aren’t planning an aggressive fight against a choice that will maintain the court’s 6-3 conservative majority.

“There’s no question about it that he views this as a solemn responsibility on either end of Pennsylvania Avenue, whether it’s as chairman of the Judiciary Committee or as president of the US,” said White House Chief of Staff Ron Klain, who was Biden’s chief counsel on the Judiciary Committee for three years and led the Clinton White House’s campaigns for two Supreme Court nominees. 

Yet Biden’s batting average in Congress — even with a razor-thin Democratic majority in the Senate — hasn’t been high, with the exception of the American Rescue Plan, a bipartisan infrastructure law and approval of lower court nominees. 

Drawing on decades in the Senate and two terms advising Barack Obama on his high-court nominees, Biden knows what he wants in a justice and the pitfalls of making the wrong pick, aides and allies say. 

Biden aides insist he’s on track to make a nomination by Feb. 28, hemmed in by his State of the Union address on March 1. But he won’t be rushed until he can make the right choice, a senior Democrat familiar with his deliberations said.

The White House has made clear Biden had a long list of judges, attorneys and civil rights leaders to choose from to replace the retiring Justice Stephen Breyer. Still, his search has focused on Judge Ketanji Brown Jackson, 51, of the D.C. Circuit Court of Appeals and Justice Leondra Kruger, 45, of the California Supreme Court, as well as U.S. District Judge Michelle Childs, 55, who’s backed by House Majority Whip James Clyburn.

The three women have career credentials and unique life experiences, but each has potential vulnerabilities. Jackson presided over cases involving then-President Donald Trump, some of which were set aside. Kruger hasn’t been Senate confirmed. Some union leaders oppose Childs because she defended some companies against discrimination lawsuits when she was a lawyer in private practice.

“A key reason he ran for president was to choose someone he believed would be a great Supreme Court justice,” said former Delaware Senator Ted Kaufman, Biden’s longtime adviser and friend. 

Biden was still facing questions as a presidential candidate in 2019 about how he and senators grilled Hill to prove her sexual harassment allegations, with one accusing her of lying.

“I’m sorry she was treated the way she was treated,” he said, an answer that rankled some voters.

But on the Judiciary Committee, Biden developed a process for evaluating candidates that aides say he still uses — reading reams of documents, including court rulings, briefs, journal articles and speeches.

“He read every word the nominee had spoken or written,” recalled Jeff Peck, a former Biden general counsel and Judiciary’s majority staff director from 1987 to 1992. 

Some Republican critics see an opportunity for karmic retribution in attacking a Biden nominee after his past treatment of Bork and Thomas. 

“It’s really interesting to have him on the opposite side of nominations, maybe at this point wishing he hadn’t been so ruthless now that the shoe is on the other foot,” said Carrie Severino, president of the conservative Judicial Crisis Network and a former Thomas clerk. 

Yet party leaders like Senator Roy Blunt of Missouri said the GOP might benefit more before the midterm elections focusing on such issues as rising inflation and supply-chain issues.

Biden took a “sharp, careful and appreciated” role advising Obama on his three Supreme Court picks, former White House Counsel Neil Eggleston recalled. For Justice Sonia Sotomayor in 2009, Biden lent his counsel, Cynthia Hogan, and his chief of staff, Klain, to the effort.

Biden’s methodical and personal approach is in stark contrast with Trump’s swift naming of his three Supreme Court justices, relying on Federalist Society and Heritage Foundation lists. 

Biden is trying to lay the groundwork for a bipartisan vote. He or his aides have reached out to GOP senators that include Lindsey Graham of South Carolina, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.

Current and former aides say Biden’s meetings and calls with senators aren’t just for show. Having been a lawmaker offering his constitutional responsibility of “advice and consent” to former presidents, he wants them to weigh in on his decision too, in the hopes of a bipartisan win.

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