Inside Biden's calculated silence on Breyer's retirement

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President Joe Biden received a much-needed political opening on Wednesday. But neither he, nor anyone close to him, appeared ready to celebrate it.

Inside Biden's calculated silence on Breyer's retirement
© Andrew Harnik/AP President Joe Biden speaks during a meeting with the President’s Council of Advisors on Science and Technology at the Eisenhower Executive Office Building on the White House Campus, Thursday, Jan. 20, 2022.

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Supreme Court Justice Stephen Breyer’s retirement plans were publicly revealed before the White House or the justice himself was expecting it, leading to a muted response from Biden and his aides. The White House — which had learned of Breyer’s plans last week, though the justice did not inform the President directly — had been preparing for the moment for more than a year. But a subdued reaction from Biden was indicative of something he has made clear for months: He won’t abide any pressure from his team, however subtle, on Breyer to step down.

“Let him make whatever statement he’s going to make,” the President said in the State Dining Room as a group of chief executives looked on. “And I’ll be happy to talk about it later.”

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The awkward moment — with Biden remaining mum even as many Democrats were celebrating news that could provide him a badly needed political boost — reflected an announcement that had not come as many had planned, least of all the President.

Biden’s calculated silence over the past months has not stopped the process of selecting Breyer’s successor from quietly taking shape. Groundwork has been carefully laid for a process that will unfold over the coming weeks, which the President hopes will lead to a confirmed justice by spring.

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Biden’s White House has created a judicial nomination machine during the President’s first year in office, vetting and selecting a raft of diverse candidates to fill open spots on the federal bench at a pace that outstrips most of Biden’s most recent predecessors. The President also has a deeply experienced player in a key role for the coming high-stakes process — his top adviser, chief of staff Ron Klain, has played a major part in nine different Supreme Court nominations over the last several decades.

The administration hopes to move fast once Breyer hands over the letter that will officially notify the President of his intention to retire. Biden and Breyer are expected to appear together at an event Thursday to make the decision formal.

After months of deference to the justice, with White House aides parsing interviews for clues on his intentions, the President is looking to chalk up a political win that could brighten his party’s dim political prospects in the fall — even if won’t change the ideological makeup of the high court.

“Anything that changes the subject is good news. It’s been a rough stretch for him. It is a chance for him both to fulfill a promise and do something that unifies his caucus and gives him a win,” said David Axelrod, a senior adviser in the Obama administration and a CNN senior political commentator.

“This is a propitious time to be talking about the Supreme Court. If the current court does as we expect and guts Roe vs. Wade in the spring, this could be a motivating factor for voters on the Democratic side, particularly women, particularly in the suburbs, which will be important. And having a stellar nominee who impresses joining the bench after June could be part of that mix.”

Biden likely to act quickly

The President is famously slow announcing many of his major decisions, with longtime advisers often explaining that he does not like to be rushed. But the Supreme Court nomination is one of the most consequential choices of his presidency, with such a compelling sense of urgency, officials believe he is likely to act far more swiftly than in other decisions he’s made since taking office.

While advisers to Biden say they do not believe he has a single pick in mind, they suspect he has narrowed his preferred choices from the list of five or six judges whose names have circulated in judicial and political circles.

“The President appreciates the urgency of this,” a longtime adviser said, “but the timing and the decision is his and his alone to make.”

Democrats outside the White House said they expected the nomination and confirmation process to track closely with tradition each step of the way, even if there’s a deliberate effort to quicken the pace.

The President has been thinking about a Supreme Court vacancy for nearly two years, since he declared at a presidential debate in February 2020 that he intended to select a Black woman, saying later: “It’s required that they have representation now. It’s long overdue.”

He first made the commitment in South Carolina, where Black voters make up a sizable portion of the electorate and which is a crucial battleground where his campaign was struggling to gain traction. It helped Biden secure key endorsements, including from House Majority Whip James Clyburn, a South Carolina Democrat. Biden went on to win the South Carolina primary, helping to lift his prospects on Super Tuesday.

During his presidential transition, the Supreme Court was a central part of the planning discussed between Biden, Klain and other top advisers. His longtime role on the Senate Judiciary Committee — and the fresh lesson from Justice Amy Coney Barrett’s confirmation — heightened his interest in the subject.

During transition meetings in Wilmington, Delaware, after the election, as his new administration was taking shape, there were recurring conversations about the Supreme Court, despite no signs of an immediate vacancy. The Barrett confirmation in the final weeks of the Trump presidency infuriated Biden, people familiar with the meetings said, and fueled his interest in filling a vacancy of his own.

Klain in the spotlight

Klain, a former Supreme Court clerk and chief counsel on the Judiciary Committee, has taken a keen interest in Biden’s efforts to put his stamp on the judiciary, the people said. At the Judiciary panel, he helped Biden shepherd nominations and manage hearings for Supreme Court nominee Clarence Thomas.

Later, when Klain was serving as an associate White House counsel, Justice Byron White asked Klain, his former clerk, to deliver his resignation letter to then-President Bill Clinton. Klain went on to play a role in the selection process for White’s successor, Ruth Bader Ginsburg. And he advised President Barack Obama on his Supreme Court elevations of then-federal appellate Judge Sonia Sotomayor in 2009 and then-US Solicitor General Elena Kagan in 2010 — Klain and Kagan had been students together at Harvard Law School.

Klain was also deeply involved when Breyer was a contender to replace White on the court when he retired in 1993. Klain interviewed Breyer from his hospital bed, where Breyer was recovering from injuries sustained during a bicycle accident. Because he had a punctured lung, Breyer could not fly to Washington for his lunch with Clinton and instead had to take a train, causing an indiscreet arrival for a usually highly secretive meeting.

This will be the ninth Supreme Court nomination in which Klain has been closely involved.

“You aren’t going to find anyone with more experience in this world than Klain,” said a Democrat who has dealt with the Biden White House on judicial nominations. “It doesn’t mean he’s running the show, but for all the experience their team has in the counsel’s office, there’s nobody who understands this — not just the process, but the importance of this moment — like Ron.”

If past is precedent, Biden will take his time interviewing possible candidates and hearing from allies who are pushing their own hopefuls. Aside from Biden and Klain, the White House is filled with staff intimately familiar with the process. The current White House counsel and national security adviser both served as Supreme Court clerks, and veterans of the Obama administration worked on the former President’s two nominations to the court.

By many accounts, US Court of Appeals for the District of Columbia Circuit Judge Ketanji Brown Jackson is a front-runner for the nomination. She has the qualities Biden says he wants, once served as an assistant federal public defender, and was recently vetted and confirmed for the lower court. She is also a former Breyer clerk and a relative by marriage to a prominent Republican — former House Speaker Paul Ryan.

Biden turns to his judicial nomination machine

Yet reaping the benefits of a successful Supreme Court nomination is not a given. The process is rife with opportunities for stumbles, as Biden knows well from watching various confirmation battles in his years on the Senate Judiciary Committee.

Successful confirmations are run with precision, utilizing the various departments within the White House — press and communications teams, lawyers in the counsel’s office and logistics specialists — to introduce a nominee to the American people and individual lawmakers.

For an administration that has placed steadfast focus on creating and maintaining a pipeline of vetted and qualified judicial nominees, much of the work on preparing for a potential vacancy has been done. Some of the contenders who have been seen as possible candidates for the high court have already been nominated for lower courts. But others haven’t yet been submitted for federal roles, one person familiar with the operation said.

Biden — who oversaw six Supreme Court nominations as chairman of the Senate Judiciary Committee, including Breyer’s in 1994 — has taken a specific interest in some of the higher-profile circuit court nominees, interviewing several of his earliest selections himself.

One of those Biden spoke with in advance of her March nomination to the powerful US Court of Appeals for the District of Columbia Circuit was Jackson, who visited the White House last February 24 to meet with Biden and White House counsel Dana Remus.

Biden is likely to meet with other candidates, though the White House has already made known those conversations will be confidential. When his administration restored a policy of publicly disclosing White House visitor logs, it specified that potential Supreme Court nominees wouldn’t be included.

A focus on diverse judicial picks

As soon as news broke Wednesday of Breyer’s planned retirement, others were putting forward their preferred candidates, suggesting the President won’t be receiving unanimous support from all corners of his party.

Ruben Gonzales, executive director of LGBTQ Victory Institute, suggested Washington state Supreme Court Justice G. Helen Whitener: “We urge President Biden to make history and appoint a Black LGBTQ woman to the US Supreme Court,” the group said in a statement.

Clyburn, a close ally of Biden’s who had encouraged him during his campaign to vow to nominate a Black woman for the court, has pushed for Judge J. Michelle Childs. Alumni of the Obama administration have also voiced a preference for Leondra Kruger, who served in the solicitor general’s office.

While Biden’s pledge to nominate the first Black woman to the Supreme Court was a significant campaign moment from which he’s never wavered, his administration’s approach to its nominees across the federal bench has carried a similar focus on diversity.

Of the 40 Biden nominees confirmed by the Senate, 78% are women and 53% are people of color. The focus on diversity has gone beyond personal backgrounds, with 20% of those confirmed having been civil rights lawyers and 40% serving as public defenders during their legal careers.

While Biden hasn’t outlined how professional background will factor into his eventual selection, it has been a significant focus for some Democrats. The administration has sought to create an unofficial model for nominees that departs sharply from past administrations of both parties that tended to favor overwhelmingly White, Ivy League-educated judges trained at prominent law firms.

Populating the federal bench with diversity in both personal and professional background is designed to add new points of view and experiences to the judicial ranks, administration officials said. But it has a secondary effect as well: elevating a roster of younger and more diverse judges who can be added to shortlists for higher courts — or the highest court.

Reading the Breyer tea leaves

When Breyer sat for a round of interviews last summer to promote his new book, White House aides parsed his answers about potential retirement, including when he told CNN that both his health and his new position as the court’s senior liberal would weigh on his thinking. He expanded further to The New York Times later, saying he would factor in who was choosing his successor when deciding whether to step down.

The comments led to rounds of speculation among some Biden advisers of what Breyer’s intentions really were as it became clear that the justice would not retire ahead of this year’s term. Some viewed the comments as a sign he was taking into consideration the makeup of the Senate.

Despite that speculation, Biden’s aides have long taken pains to avoid weighing in on a potential Supreme Court opening, even in in their private conversations with Democratic allies, multiple people familiar with the matter said. Biden has long warned them that even a hint of White House pressure on Breyer to retire could backfire, officials said.

Biden has also characterized it as a matter of professional dignity that tenured officials be given space to make their own decisions and announcements on retirement — something some aides ascribe partly to his own age and experience being written off as too old for the presidency.

Among members of Biden’s senior team, at least one maintains a close connection to Breyer: national security adviser Jake Sullivan, who clerked for the justice in the early 2000s. Sullivan’s wife, Maggie Goodlander, also clerked for Breyer three years ago and the justice attended their wedding on the campus of Yale Law School in 2015.

While Breyer informed the White House of his decision last week, according to multiple sources, he also made clear the official letter that traditionally launches the process would be forthcoming. Without that letter in hand — and Breyer’s own words framing his decision — Biden and his aides declined to address the decision after the news broke Wednesday afternoon. The justice also never directly told Biden of his plan.

But that didn’t mean the process wasn’t already kicking into gear. The White House had already begun informing Democratic senators of Breyer’s decision, according to one source familiar with the calls to Capitol Hill.

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