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The inside story of how Biden promised to appoint a Black woman to the Supreme Court

·Chief Investigative Correspondent
·4 min read
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With the announcement that Supreme Court Justice Stephen Breyer is retiring, the White House’s plans to replace him are likely to be shaped by relatively little-known comments that then-candidate Joe Biden made under intense political pressure during the make-or-break South Carolina presidential primary.

Supreme Court Associate Justice Stephen Breyer in 2017.
Supreme Court Associate Justice Stephen Breyer in 2017. (Steven Senne, AP Photo)

It was Feb. 25, 2020, the night of a crucial Democratic presidential debate in South Carolina — and Biden’s campaign was on the ropes, in serious danger of being knocked out of the race. The former vice president had been trounced in the Iowa caucuses (where he finished fourth) and the New Hampshire primary (where he came in fifth). South Carolina was his firewall, and Biden was counting on a promised endorsement from the most powerful figure in the state’s Democratic politics, House Majority Whip James Clyburn, the former chair of the Congressional Black Caucus, to revive his campaign.

But Clyburn was extracting a firm promise from Biden: that he would name an African American woman to the Supreme Court. There have been only two Black Supreme Court justices, and only five women on the court — none of them Black.

Clyburn raised the issue with Biden on the night before the debate, and he expected that Biden would make the commitment during the debate. But as the debate unfolded at Charleston’s Gaillard Center concert hall, Clyburn “grew more and more frustrated,” according to an account presented by the journalists Jonathan Allen and Amie Parnes in their book “Lucky.” “Why won’t he say it?” Clyburn asked himself.

At that point, the authors add, Clyburn — during a break in the debate — took the matter into his own hands and headed backstage to confront Biden.

“So Clyburn gets up from his seat in the debate hall in the audience, and he makes a beeline for the exit,” Allen said during an appearance on the Yahoo News Skullduggery podcast last March. When he found Biden, he unloaded, Allen added. “He says, ‘Look, I told you that I wanted you to say that you were going to name a Black woman to the Supreme Court. You haven’t done it yet. You’ve had a bunch of opportunities. Don’t you dare leave this stage without doing it.’”

House Majority Whip, Rep. Jim Clyburn, D-S.C., left, listens to the Democratic presidential candidate, former Vice President Joe Biden, at an event in North Charleston, S.C., on Feb. 26, 2020.
House Majority Whip Jim Clyburn, D-S.C., listens to then-presidential candidate Joe Biden speak in North Charleston, S.C., on Feb. 26, 2020. (Gerald Herbert/AP Photo)

Biden took the message — or warning — from his most important political backer to heart. When the debate resumed, Biden delivered. “Everyone should be represented,” he said when asked about his personal motto and the biggest misconception about him. “The fact is, what we should be doing — we talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.” And then he added: “Not a joke.”

Clyburn officially endorsed Biden the next morning — and Biden went on to a resounding triumph in the South Carolina primary, putting him back on the path to the nomination.

The commitment made in the heat of the political campaign — in order to placate a crucial political patron — now seems likely to kick in. Initial reports in the aftermath of Breyer’s announcement cite two leading contenders as the White House nominee to replace him: U.S. Court of Appeals Judge Ketanji Brown Jackson (a Harvard-educated former federal assistant public defender who wrote a key opinion arguing that Donald Trump’s former White House counsel Don McGahn had to testify to Congress) and California state Supreme Court judge Leondra Kruger (a former deputy U.S. solicitor general). Both are African American.

There is nothing certain in Supreme Court politics, but if either of them is appointed, they’ll have Clyburn — and his demands to a desperate candidate — to thank. And without naming any names, on Wednesday White House press secretary Jen Psaki reaffirmed the president's pledge to name a Black woman to the Court.

“It shows you how politics works, in a way,” Allen explained during his appearance on “Skullduggery.” “It wasn’t a quid pro quo, per se — using all my Latin phrases at once. But there was a ton of pressure on Biden to do this, from the guy who could help deliver him some votes a few days later.”

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