How presidential interviews can make or break a Supreme Court nomination

By CNN Newsource

Published February 22, 2022 10:08 am

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

He has read their cases. He knows their records. And now President Joe Biden has begun the last stage for selection of a new Supreme Court justice: the interview.

For possible nominees, this can be a make-or-break moment. The late Justice Ruth Bader Ginsburg famously sealed her nomination during a June 1993 meeting with President Bill Clinton, after he had concentrated for weeks on other candidates. It was, Clinton said later, “the conversation of a lifetime.”

For a president, the interview provides an opportunity to bond with an individual who would fulfill his legacy on the nation’s highest court, to delve into her legal approach and personal story.

These one-on-one sessions offer a private prelude to the raucous public scrutiny of the Senate Judiciary Committee hearings. And themes from these presidential exchanges may later emerge in confirmation hearings, such as when now-Chief Justice John Roberts first told then-President George W. Bush, former owner of the Texas Rangers baseball team, that a good judge is like an umpire.

Biden began interviews late last week, sources told CNN, and he appears on track to announce his choice of a successor to retiring Justice Stephen Breyer by the end of the month. Leading contenders are US Appeals Court Judge Ketanji Brown Jackson of Washington, DC; California Supreme Court Justice Leondra Kruger; and US District Court Judge Michelle Childs of South Carolina.

Biden’s experience as a former chairman of the Senate Judiciary Committee offers him a unique vantage point.

“He’s as well-informed about this process as anyone living,” said University of North Carolina law professor Michael Gerhardt, who has advised Judiciary Committee Democrats on nominations since 2009. “I think he will likely ask a wider array of questions than most other presidents.”

Gerhardt said he expected Biden to ask generally about regard for precedent, at a time when conservative justices are reversing decades-old decisions, and to try to understand how she would work with others on the fractured court.

Jeff Peck, a former Judiciary Committee general counsel and staff director under Biden, said he expected the President to home in, first, on “essential constitutional law principles, to see how the potential nominee thinks about the law.”

“Second, Joe Biden is a great reader of people, and he wants to know what makes them tick,” Peck said. “A person’s values are really important to Joe Biden.”

Other presidents have gone into Supreme Court candidate interviews similarly trying to understand the person who would don the black robe.

“I tried to put them at ease by giving them a tour of the living area,” President George W. Bush recounted in his 2010 memoir. “Then I took them to the family sitting room that overlooks the West Wing. I had read the summaries of their legal opinions; now I wanted to read the people.”

Presidents avoid questions on specific cases and are not known to seek promises, such as to uphold, or strike down, the 1973 Roe v. Wade decision that made abortion legal nationwide.

President Donald Trump, who had vowed to appoint justices who would reverse Roe, said during a “Fox and Friends” interview in 2020 that he declined to ask Amy Coney Barrett, whom he selected for the Ginsburg vacancy, how she would vote on Roe.

“I don’t think it was for me to discuss that with her because it’s something she’s going to be ruling on.” But Trump added that her past rulings suggest she might reverse Roe. “I can say this: that she is certainly conservative in her views and her rulings. We’ll have to see how that all works out. I think it will work out.”

Biden’s Senate experience

Biden, who holds a law degree from Syracuse University law school, served as Senate Judiciary Committee chairman from 1987 to 1995, through the tumultuous hearings for Robert Bork, nominated by President Ronald Reagan and defeated by the Senate in 1987; and Clarence Thomas, nominated by President George H.W. Bush and narrowly confirmed by the Senate in 1991 amid sexual harassment allegations.

Biden also presided over tamer hearings, such as those for liberals Ginsburg in 1993 and Breyer in 1994, and was a member of the committee when it reviewed George W. Bush nominees John Roberts, in 2005, and Samuel Alito, in 2006.

Biden regularly queried nominees about constitutional privacy, a woman’s right to abortion and equal protection under the law. His questions sometimes took personal tangents and produced moments of drama.

When he questioned Alito about possible activities in a Princeton alumni group reputed to oppose the admission of women and minorities, Biden referred to Alito’s Italian-American background and his own Irish Catholic roots.

“I read your opening statement again, where you said that, ‘A generation earlier I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton.’ … That’s how I felt,” said Biden, who graduated from the University of Delaware before going to Syracuse, speaking generally of the elite campus.

Biden then whipped out a Princeton cap, put it on, and said that because the university had improved its record of women and minority admissions, “I can wear this hat proudly today.” (Alito, who had referred to his membership in the controversial group on a Reagan administration job application, told senators he could not recall “having anything to do with” the group.)

In a moment of drama in the earlier hearings for Roberts, Biden tried to draw out the nominee’s personal views of legal standards for assisted suicide.

“Just talk to me as a father,” Biden said, “Just tell me, just philosophically, what do you think? … What do you feel? Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making a judgment, they are comatose, to prolong that life should be one that the legislators in Dover, Delaware, should make or my mother should make?”

Roberts declined to engage on personal terms. “No, I’m not going to consider issues like that in the context as a father or a husband or anything else. … (T)he position of a judge is not to incorporate his or her personal views in deciding issues of this sort.” Biden, a longtime critic of Roberts dating to the nominee’s advocacy in the Ronald Reagan and George H.W. Bush administrations, voted against Roberts as he cleared the Senate 78-22.

Rapport with a President matters

Roberts, however, won over the younger President Bush when it mattered.

“Behind the sparkling resume was a genuine man with a gentle soul,” Bush recalled of their meeting in his book, Decision Points. “He had a quick smile and spoke with a passion about the two young children he and his wife, Jane, had adopted. His command of the law was obvious, as was his character.”

Bush said Roberts likened a good judge to an umpire, a metaphor Roberts carried into his Senate hearings when he said, “Umpires don’t make the rules, they apply them. … Nobody ever went to a ball game to see the umpire.”

Republican or Democratic, presidents admire a human touch.

In 1993, Clinton focused on several other finalists before settling on Ginsburg. He interviewed Breyer, who at the time was recovering from a serious bicycle accident and on pain medication. He failed to impress Clinton. (Breyer was nominated the following year when another vacancy arose.)

The White House was three months into the process in 1993, with one dashed possibility after another. Clinton was finally persuaded to ask Ginsburg, a former women’s rights pioneer then serving as a federal appellate judge, to come to the White House. With her reputation for moderate rulings and reserved personality, Ginsburg had initially failed to capture the interest of the Clinton team.

“We sneaked her in there on a Sunday night, and nobody knew it,” Clinton recounted to CNN’s Jake Tapper after Ginsburg’s 2020 death. “And I had the conversation of a lifetime with her. I knew after we talked for 10 minutes that I should appoint her.”

Asked what made the difference, Clinton said, “She was disarmingly straightforward. … I felt like we were just two friends having an honest conversation about American history, the Constitution and the law. … She had this uncanny ability to be very much in the weeds, if you will, of the intellectual legal arguments and yet never lose sight of the human impact of her decisions.”

Clinton offered her the nomination and made his choice public in the Rose Garden the next day.

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