RBG nomination records reveal Ron Klain's playbook for putting a Black woman on the Supreme Court

• Ron Klain guided the late Justice Ruth Bader Ginsburg to her Supreme Court confirmation in 1993.
• Clinton-era records detail Klain's "courtesy calls" and confirmation hearing prep.

In the internal White House memo, Ron Klain offered a brief but unsparing assessment of US senators.

Sen. Patrick Leahy, a Vermont Democrat, "can be prickly if ignored, and he has been ignored."

Sen. Chuck Grassley, an Iowa Republican, "can be difficult and stubborn."

The year was 1993, and as a young White House lawyer in the heat of Washington's early summer, Klain was taking the Senate's temperature on a federal judge from New England, Stephen Breyer, who was poised to become then-President Bill Clinton's first Supreme Court nominee.

Of then-Sen. Joe Biden, Klain wrote, "He is going to get back to me today with his final answer, but he was positive."

He added: "If we can lock down Biden, we would have the Committee leadership on board."

But prospects for Breyer, then a judge on the US Court of Appeals for the First Circuit, dimmed when news broke of his failure to pay Social Security taxes for a part-time housekeeper. Klain's memo — subject line: "Hill consultations regarding Breyer & Social Security problem" — suggested there was still hope for Breyer.

Ultimately, there was not. In July, Clinton instead nominated Ruth Bader Ginsburg, who was confirmed with Klain guiding her through the Senate process. Clinton would return to Breyer a year later when a second Supreme Court seat opened.

Nearly 30 years later, the "Social Security problem" memo and other Clinton-era White House records offer insights into how Klain might approach the process of replacing Breyer, who announced last month that he plans to retire.

Biden pledged on the campaign trail to name the first Black woman to the Supreme Court, and in Klain, he has a White House chief of staff with deep expertise in the Senate confirmation process.

The Clinton-era records portray Klain as a precocious young White House lawyer with an eagerness to jump into the politicking that comes with a Supreme Court confirmation fight. A former Supreme Court clerk, Klain joined the Clinton White House after serving as chief counsel for the Senate Judiciary Committee, and he drew from that experience to spill on Biden and other members who continue to serve on the panel to this day.

In one memo to Clinton's chief congressional liaison, Howard Paster, Klain said he expected Biden — then the chairman of the Senate Judiciary Committee — to question Ginsburg about freedom of speech, the "right to die," and her views on a legal precedent for courts to give deference to federal agencies in developing regulations.

A June 1993 memo identifies Klain and fellow White House lawyer Joel Klein as volunteers to "do the questioning" in mock hearings. Under the heading "courtesy calls," the memo notes that Klain "reported that RBG has seen all of the senators on the Judiciary Committee" except Sen. Arlen Specter, who died in 2012. Another memo mentioned that Klain planned to review video of past Senate confirmation hearings to " identify particular exchanges in several of the hearings that should particularly be·brought to the Judge's attention."

"Because he came out of the Senate, he understood what the landmines were and what answers would blow up in her face," said Neil Eggleston, who served as White House counsel in the Obama administration and, years earlier, worked in the Clinton White House counsel's office. "If there are murderboards — and there always are — he'll do that and go through the hot-button questions. I would expect him to be involved in that sort of moot court prep session."

Familiar faces

In one 1993 memo, Klain highlighted a half-dozen "major areas of focus" in the confirmation hearings. Among them: the death penalty, gay rights, "labor/consumer/antitrust," and Ginsburg's membership and involvement in the American Civil Liberties Union.

But Klain would go into deeper, senator-by-senator detail — including on three senators who continue to serve today and are poised to vote on Biden's Supreme Court nominee.

From Grassley, he anticipated a question about whether Ginsburg was a judicial "activist."

From Leahy, he expected questions about reproductive rights and the Freedom of Information Act, a federal law designed to make government records available to the public.

In the memo on Breyer's "Social Security problem," Klain described Sen. Dianne Feinstein as "very skittish on the social security issue generally." The memo was addressed to then-White House counsel Bernie Nussbaum, who declined to comment.

Klain's subsequent memo about likely lines of questioning characterized the California Democrat as a "hard-liner on immigration issues" and a supporter of gay rights and the death penalty.

That 1993 memo also said Feinstein "will try to establish that RBG is a moderate; she is concerned about ACLU ties and wants Ginsburg to distance herself."

Klain based that memo on Ginsburg's courtesy calls with the senators, along with "our subsequent contacts with staff and senators, and prior Judiciary [Committee] hearings."

Now in 2022, Leahy, Grassley, and Feinstein remain on the Senate Judiciary Committee. On Thursday, Leahy was among the Democrats on the Senate Judiciary Committee who met with Biden at the White House.

Outside the White House, Leahy noted that he has voted on many Supreme Court justices in his nearly five-decade Senate career. But, he said, "This is the historic one."

In an interview with NBC, Biden said he is vetting "about four" candidates for the coming Supreme Court nomination. Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and Judge J. Michelle Childs are considered leading contenders.

Feinstein was the only Democrat on the Senate Judiciary Committee who did not attend Thursday's meeting at the White House.

Ahead of the meeting, Leahy, Feinstein, and Grassley told Insider they could not recall Klain's his approach to shepherding Ginsburg through the confirmation process 30 years ago.

Asked by Insider about Klain's role, Grassley told Insider, "I have no recollection, except for voting for her."

The Iowa Republican — who met last week with Biden, Vice President Kamala Harris, and Judiciary Committee Chair Dick Durbin to discuss the Supreme Court appointment process — declined to share what criteria should be used to vet the next justice.

"I reserve comment until there's a nominee," Grassley told Insider.

Leahy said he didn't recall interacting much with Klain in Ginsburg's confirmation process.

Feinstein said, "Oh, I don't remember," when asked about her recollection of Klain in Ginsburg's confirmation process.

'Sherpa' Doug Jones and other advisors

Klain was just shy of 32 years old when he guided Ginsburg through her Supreme Court confirmation process. While he possessed Senate experience and Supreme Court familiarity, his prominent role at that relatively young age reflected Democrats' decidedly thin bullpen on judicial appointments.

Prior to Clinton, after all, Republicans had held the White House for 12 years. Before that, President Jimmy Carter served his full term without filling a Supreme Court seat. President Lyndon Johnson — in 1967, with the confirmation of Justice Thurgood Marshall — was the last Democrat to successfully secure a Supreme Court appointee.

The Clinton-era memos show that the White House reached out to corporate law firms for assistance in Ginsburg's confirmation process. One firm, Covington & Burling, was "preparing a review of the pattern of questions" at other confirmation hearings, including Justice Sandra Day O'Connor's. A team of lawyers at Wilmer, Cutler, Pickering, Hale, and Dorr was "doing a detailed analysis" of Ginsburg's "written and spoken work outside of the court."

It is unclear whether the Biden White House will similarly turn to large law firms at a time when his administration is eschewing corporate lawyers for judicial appointments.

And times have certainly changed for Democrats. The team now advising Biden brings years of experience with judicial appointments and is reporting to White House counsel Dana Remus, a former law professor at the University of North Carolina at Chapel Hill who worked in the Obama White House and served as Biden's 2020 campaign general counsel.

"I can't recall an administration in history that's had this many principals and senior officials who've been so intimately involved in judicial nominations," said Andy Wright, a former Obama White House lawyer who served on the Biden-Harris transition. "Dana Remus clerked on the Supreme Court. The president was chairman of the Judiciary Committee. The vice president was a member of the Judiciary Committee and the attorney general of our most populous state. The chief of staff was the chief counsel to the Judiciary Committee, and the list goes on ... These are very seasoned professionals in this process."

The group of advisors also includes Paige Herwig, a former Obama White House and Senate lawyer who once worked for Demand Justice, a courts-focused progressive group that pressured Breyer to retire.

Biden also announced last week that former US Sen. Doug Jones, an Alabama Democrat whom he considered for attorney general, would serve as the "sherpa" for his Supreme Court nominee. Jones, who lost in the 2020 election to now-Sen. Tommy Tuberville, is now counsel at the law firm Arent Fox and a distinguished senior fellow at the Center for American Progress, a left-leaning think tank.

Other outside advisors include Ben LaBolt, a former Obama White House communications aide who served as national press secretary for Obama's reelection campaign; and Minyon Moore, a principal at the Dewey Square Group who served in the Clinton White House.

As chief of staff, Klain is expected to have a strong voice in Biden's selection of a nominee. But, with his broader responsibilities, he's almost sure to take a more hands-off approach to the confirmation process.

"He's now the chief of staff to the president. He's not a chief counsel to the Senate Judiciary Committee. So he has obviously a vast array of responsibilities and demands on this time he has to manage along with a Supreme Court nomination process," said Jeff Peck, who served as the Senate Judiciary Committee's staff director when Klain was chief counsel.

Under him, Peck said, "you have, really, the most superlative, experienced team you've ever had."

Robin Bravender contributed to this article