If President-elect Joe Biden gets to choose a new Supreme Court justice, chief of staff Ron Klain would have the playbook ready.
Klain, tapped for the top Biden role on Wednesday, has been at the absolute center of Supreme Court confirmations for three decades, as chief counsel to the Senate Judiciary Committee and as a leading lawyer in the Clinton and Obama administrations.
And Klain himself did not bypass the Third Branch. After graduating from Harvard Law School, he served as a Supreme Court law clerk in 1987 and 1988.
He traversed all three branches simultaneously in spring 1993 when President Bill Clinton chose Ruth Bader Ginsburg for a high court vacancy.
As Justice Byron White was preparing to announce his retirement, he asked his former clerk Klain to visit his chambers. White gave Klain, then an associate White House counsel, a resignation letter to deliver to Clinton.
Soon after, Klain synchronized with Biden, then the Senate Judiciary Committee chairman, over the administration’s search for a new justice. Klain had been chief counsel to Biden on the committee from 1989 to 1992, including during the controversial 1991 Clarence Thomas-Anita Hill hearings.
Clinton’s selection of a successor to White took several turns, as the President’s team considered other candidates before landing on Ginsburg, three months after the March day on which White handed Klain the letter.
The 59-year-old Indiana native, who was chief of staff to then-Vice President Biden, is clearly steeped in relevant government service to today’s crises. During the Obama years, he oversaw the administration’s response to an Ebola outbreak.
The Supreme Court could present a distinct opportunity for a deeper Biden legacy in the law. Justices, along with federal trial and appellate judges, are appointed for life.
With the recent death of Ginsburg and succession of Justice Amy Coney Barrett, the high court is now dominated by a new 6-3 conservative-liberal majority. It would plainly take more than a single Democratic appointment to alter the far-right control.
Justice Stephen Breyer, a liberal 1994 Clinton appointee, is 82. Justice Clarence Thomas, named by President George H.W. Bush, is 72, and Samuel Alito, named by President George W. Bush, is 70.
Of those three eldest justices, the most likely to step down in the next four years would be Breyer.
But Supreme Court politics can take surprising twists.
In early 2016, when Justice Antonin Scalia died suddenly, President Barack Obama chose US Appeals Court Judge Merrick Garland, but Senate Majority Leader Mitch McConnell blocked the nomination for nearly a year.
The Scalia vacancy then became President Donald Trump’s to fill after his November 2016 election.
Klain, who had left the Obama administration by 2016, had earlier advised Obama on his Supreme Court elevations of then-US appeals court judge Sonia Sotomayor in 2009 and then-US Solicitor General Elena Kagan in 2010. (Klain and Kagan were students together at Harvard Law School.)
During the March 2017 confirmation hearings for Justice Neil Gorsuch, Klain and conservative commentator Hugh Hewitt participated in a Washington Post online discussion.
As Hewitt criticized some tough questions, saying most senators had abandoned “old standards of civility,” Klain countered, “Yes, they were pointed – but this isn’t patty-cake. At stake is a life-tenured appointment to the nation’s highest court. … The questions should be hard – and they certainly were for Justices Sotomayor and Kagan.”
During Kagan’s confirmation, in fact, when then-Alabama Sen. Jeff Sessions tried to pin down Kagan on her liberalism, he referred to Klain. The Alabama Republican noted that Klain had described Kagan as “clearly a legal progressive … I do not think there’s any mystery to the fact that she is.”
Was that characterization correct, Sessions asked the nominee.
“I love my good friend Ron Klain,” Kagan responded, “but I guess I think that people should be allowed to label themselves, and … I guess I’m not going to characterize it one way or another “
The new Biden chief of staff may, over the next four years, extend his own mark as Supreme Court selector.