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Biden will lean into his long tenure as a senator to fill Supreme Court vacancy

LEILA FADEL, HOST:

When President Biden looked back on his first year in office, he admitted one big tactical error.

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PRESIDENT JOE BIDEN: The public doesn't want me to be the president-senator. They want me to be the president and let senators be senators.

FADEL: In other words, Biden thought he spent too much time bogged down in negotiations. But then Biden got a chance to fill a seat on the Supreme Court, and that has Biden once again leaning into his long tenure as a senator. Here's NPR's Scott Detrow.

SCOTT DETROW, BYLINE: Biden sure sounded like a president-senator when he recently sat down with Republican Chuck Grassley and Democrat Dick Durbin in the Oval Office to talk about the upcoming nomination.

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BIDEN: We've done an awful lot of Supreme Court justices together, Senator Grassley and I, as well as Senator Durbin. And we've worked together on a lot of court nominations, overall, but particularly Supreme Court nominees.

DETROW: Biden even mentioned that he had recently spent time re-reading his old opening statements from past confirmations. The same day, Biden called Senate Minority Leader Mitch McConnell to talk about the nomination process. He's phoned Republican Senator Susan Collins, too. White House Press Secretary Jen Psaki says Biden isn't walking away from that promise to stay out of legislative details.

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JEN PSAKI: I think what he was referring to in those comments was hours and hours and hours of endless closed-door meetings, as it related to negotiating through the course of the fall. But this is an opening on the Supreme Court, which is a lifetime appointment, something the president takes very seriously.

DETROW: When Biden looks back at his time in the Senate, he often focuses on the bipartisanship. It's what he singled out about Justice Stephen Breyer's time as a Judiciary Committee lawyer.

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BIDEN: He was famous for biking across Washington, virtually every day, for face-to-face meeting with a Republican chief counsel, the ranking Republican counsel. And over breakfast, they discussed what would they do for the country together 'cause, in those days, we tried to do things together.

DETROW: Not always, though. University of Georgia Law Professor Lori Ringhand has written extensively about these nominations.

LORI RINGHAND: The Supreme Court confirmation process has always been responsive to moments of intense partisanship. There's never really been a long period of time when this has not had at least some controversy around it.

DETROW: Biden oversaw smooth, bipartisan confirmations for justices like Breyer, but he also shared some of the most contentious hearings in recent memory - the Clarence Thomas confirmation rocked by Anita Hill's sexual harassment allegations and the 1987 Robert Bork confirmation Biden helped scuttle by focusing on how Bork viewed privacy rights.

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BIDEN: If they had evidence that a crime was being committed...

ROBERT BORK: How are they going to get evidence that a couple are using contraceptives?

BIDEN: A wiretap.

BORK: Wiretapping?

BIDEN: A wiretap.

DETROW: Ringhand says three main factors go into how contentious a confirmation is - the overall political mood of the country, which party controls the Senate and whether the new justice would flip the balance of the court. While partisanship feels like it's at an all-time high, in this case Biden's pick wouldn't change the court's numbers. Given that, Brian Fallon doesn't see anything wrong with Biden spending time courting Republicans. That's despite the fact the executive director of Demand Justice has often criticized Democrats for not being sharp-elbowed enough on court confirmations.

BRIAN FALLON: There's a difference between, you know, the vast majority of the Republicans voting no on this pick and them going on total war footing on this nomination fight.

DETROW: Fallon also sees Biden's Republican outreach as a way to soothe concerns of more moderate Democrats. In an evenly divided Senate, that's always a critical task, as the Biden White House knows from all of last year's negotiating.

Scott Detrow, NPR News, Washington.

(SOUNDBITE OF NILS HOFFMAN AND BEN BOHMER'S "SECOND SUN") Transcript provided by NPR, Copyright NPR.

Scott Detrow is a White House correspondent for NPR and co-hosts the NPR Politics Podcast.
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