'This is not gonna be amateur hour': After considering 6 Supremes as senator, Biden finally gets to pick one as president

WASHINGTON — President Biden will have a chance to make history when he nominates the first Black woman to the Supreme Court in a matter of weeks. And when he does, his decades-long work of shaping the federal bench as a member of the Senate Judiciary Committee will reach its apex.

"It will be a capstone,” says Jeremy Paris, a policy counsel at the Raben Group who worked with Biden on the committee from 2005 until Biden left the Senate to serve as Barack Obama's vice president in 2009. “He understands the role of history,” Paris told Yahoo News.

A member of the Senate for 36 years — and chairman of the Senate Judiciary Committee from 1987 until 1995 — Biden will almost certainly benefit politically from successfully installing his pick on the Supreme Court after months of setbacks and dispiriting poll numbers.

“There’s never been someone in the White House with a broader and deeper understanding of the Supreme Court selection and confirmation process than President Biden,” said Jeff Blattner, a special assistant attorney general in Colorado who worked closely with Biden when he was counsel on the Judiciary Committee for Sen. Ted Kennedy. “Full stop. Absolutely.”

By committing to picking a Black woman — the first in the high court’s history — Biden will also have a chance to atone for his treatment of Anita Hill during the 1991 fight over Clarence Thomas’s nomination to the Supreme Court. At the time, Biden was chairman of the Judiciary Committee and oversaw Thomas’s confirmation.

Hill, an attorney who worked for Thomas at two government agencies in the 1980s, said she was sexually harassed by Thomas on numerous occasions; Thomas denied the allegations, and likened the confirmation hearings in which Hill testified to a “high-tech lynching.”

Biden voted against Thomas’s confirmation, but said years later that he owed Hill an apology.

“I wish I had been able to do more for Anita Hill,” Biden said in 2017. Late-night TV host Jimmy Kimmel joked this week that Biden should rectify that wrong by nominating Hill.

During his time as Judiciary Committee chairman, he oversaw six Supreme Court confirmations, including four from Republican presidents (Ronald Reagan and George H.W. Bush) and two from Bill Clinton, a Democrat.

The last of those nominations was that of Breyer, who was himself a relatively uncontroversial Boston circuit judge. The two men have known each other since the late 1970s, when Breyer was working as a special counsel for the Judiciary Committee, Biden said on Thursday as he formally announced Breyer’s retirement, which will come at the end of the present Supreme Court session.

“He’s been in the trenches for decades,” says Nan Aron, who worked with Biden on several of those nominations with the group she founded, Alliance for Justice. In the last two decades, the number of progressive groups focused on judicial activism has increased greatly, with some using the Brett Kavanaugh confirmation fight in 2018 as a kind of Washington launching pad.

“He’ll have a formidable army,” Aron says, though it is not yet clear if he will need one, given that Democrats have a majority in the Senate, narrow though it may be. So long as every Senate Democrat stays in line, there’s very little Republicans can do to stop Biden’s pick, unlike in 2016, when Biden, then the vice president, witnessed them stonewall Merrick Garland’s nomination into oblivion.

The current contentiousness of Supreme Court nominations has much to do with the first nominee Biden encountered as chairman of the Senate Judiciary Committee: U.S. Court of Appeals Judge Robert Bork, nominated by Reagan in 1987. A cerebral and unapologetic conservative, Bork had been a key ally of President Nixon during the Watergate scandal and was portrayed as a far-right jurist by liberal critics.

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy,” Ted Kennedy famously said on the Senate floor shortly after Bork’s nomination was announced.

Bork’s immense intelligence could have posed a problem for Biden, then 44 and in his first year as the committee’s chairman. But aides say Biden prepared meticulously for the hearings, which won praise from liberal observers.

“He studied Bork’s record and writing very intensely over the entire summer before the hearings,” Blattner remembers. The result was a series of hearings in which Biden helped sink Bork’s nomination, even as he oversaw the failure of his first presidential campaign.

“He not only earned praise from all sides for the fairness and good humor with which he ran the proceedings,” wrote Linda Greenhouse of the New York Times. “He also scored high points on substance in the face of widespread skepticism about whether he had the intellectual depth or the temperament to preside over hearings that promised to turn into a profound constitutional debate.”

Bork’s failed nomination yielded the concept of “Borking,” which refers to the allegedly unfair treatment of a judicial candidate. Since then, most judicial nominees have been far more circumspect than the imperious Bork, in large part as a testament to how capably Biden managed to tease out his most radical ideas about jurisprudence.

Biden will be "very aware of what I think will be the enormous unfairness this nominee might face at the hearing," Paris, the former Judiciary Committee aide, said. At the same time, the hearings will be a moment for an outstanding legal mind to present herself to the nation — and make Biden look good at the same time.

“The lights are on,” Paris says of the hearings, which have been televised since the Sandra Day O’Connor nomination in 1981. “Americans are paying attention. It’s the one democratic moment in the process."

Biden’s nominee could become only the third Black justice on the Supreme Court. The first, Thurgood Marshall, was nominated by President Lyndon Johnson. The second is Clarence Thomas, who was confirmed despite Biden’s efforts.

Nominated in 1991 by President Bush, Thomas was seen by conservatives as an example of how far the United States had progressed since the days of legal segregation. Democrats feared that he would prove a committed opponent of legal abortion and affirmative action.

Hill had come forward with allegations that Thomas had harassed her when she worked for him at the Equal Employment Opportunity Commission. In “Strange Justice,” a book about the Thomas hearings, journalists Jane Mayer and Jill Abramson describe Biden as “especially accommodating towards the Republicans” about how Thomas’s claims would be handled.

The result, they write, was a rushed investigation into her accusations against Thomas, followed by hearings in which those accusations were greeted with skepticism, from Republicans in particular.

“Biden agreed to the terms of the people who were out to disembowel Hill,” an aide to Ted Kennedy fumed.

Biden voted against Thomas both in committee (which had no women at the time) and the full Senate, but his skepticism of Hill’s claims continued to hound him into the 2020 presidential campaign, 20 years after those hearings took place.

“He learns from these experiences,” Paris says. Biden addressed his role in the Thomas nomination as the presidential primary campaign began. “I take responsibility that she did not get treated well,” he told an interviewer in 2019. “I take responsibility for that.” Running for president in 2020, Biden said he regretted how he handled the Thomas hearings and later called Hill to apologize, although she would subsequently reveal that she was unsatisfied with what he said to her in that conversation.

Since becoming president, Biden has moved to diversify the federal bench. He has nominated eight Black women to the appellate bench, from which Supreme Court nominees are commonly selected. At his side is White House chief of staff Ron Klain, who worked with Biden as an attorney for the Judiciary Committee before overseeing judicial appointments for President Clinton. Many aides from Biden’s earlier posts in politics are either in the West Wing or close by.

“This is not gonna be amateur hour,” Blattner says. “These guys know what they’re doing.”