Why Stephanie Cutter says Dems need a new SCOTUS strategy

Today, Cutter joins playbook author Ryan Lizza to explain what it’s like behind the scenes of a SCOTUS approval process – and what’s keeping her up at night about the process this time.


About the SCOTUS Sherpa Roll

Ryan: Why is it called Sherpa?

Stephanie: Because you’re taking the person through the Senate. One of the traditions is that the Supreme Court nominee visits and visits each Senator because the Senate has an advisory and approving role in this process. So [Justice Sonia Sotomayor] went to 80-something offices. You should not say anything about the content of the meeting. It’s just heartfelt.

About justice candidates preparing for tough interactions with senators

Ryan: What do you do when you’re preparing to meet a hostile senator?

Stephanie: Don’t say anything.

Ryan: So it’s not very different from the Judiciary Committee hearing itself?

Stephanie: There were certain things we knew she would be asked. She’d made a remark in a speech…perhaps? This goes way back where she said “wise Latina”.

Ryan: Of course. I don’t remember why was “wise latina” controversial?

Stephanie: I try to remember that too. It was something where there was a presumption that a Latina would bring her own perspective to the court, rather than being unideological and impartial with the law. To be clear, every judge brings their own perspective to the court, and sometimes that’s what you want. You need a judiciary that has lived experience, you know, that understands how justice is delivered and not delivered. Because it’s not always the same. And that was very controversial at the time. I remember going to the [former Sen.] Meeting with Orrin Hatch and he asks her about it. Usually these meetings are very cordial and it was not a friendly meeting. She had an answer to that and I don’t remember what that answer was. If we go back to her hearing transcript, I’m sure it’s there.

Ryan: It’s probably the same, the same thing she said publicly.

Stephanie: Most of these encounters were very cordial. Some of them weren’t.

Ryan: If you’re a Sherpa for a Supreme Court nominee, would you want them out there doing any interviews?

Stephanie: No no. You just don’t want them. Her record is her record. You don’t want to add anything new.

Ryan: It must be hard to watch yourself being slammed in the press though, and maybe you want to too.

Stephanie: Oh yes, to defend yourself. Yes absolutely. They try to keep the time between nomination and hearing as short as possible to prevent this from happening. You have a contraption that does the fighting for you.

About playing under the new SCOTUS confirmation rules

Ryan: so you wrote a comment and basically explained your role in the Sotomayor trial and said don’t do that this time.

Stephanie: Yes.

Ryan: Why not? That was only in 2009. Not an old story, but a long time ago. So what has changed where your advice to the Biden administration is “Everything is different now and here is my recommendation to you”?

Stephanie: Not just for her. Also for the Senate. Look, President [Joe] Biden has overseen I don’t know how many Supreme Court confirmations because he was the Judiciary Committee chairman for many years, so he knows what this trial is about. Ron Klain, his chief of staff, has also been there for many years, on both sides of the equation, on the White House side, on the Senate side. So there is no one more experienced than this team. I have full confidence in this team. I was just pointing this out when we made nominations for the Supreme Court under the President [Barack] Obama or even President [George W.] Bush, normal Senate traditions were still in play, but those rules have changed. And under President [Donald] Trump and Mitch McConnell, who was then Senate Majority Leader, there is no longer a 60-vote threshold to call off the debate, dubbed a filibuster.

Ryan: You had to live there.

Stephanie: We had to live within the threshold of 60 votes for all President Obama’s nominees.

Ryan: That changes a lot.

On the political effect of a confirmation by the Supreme Court

Ryan: Just in terms of pure politics, President Biden is struggling a bit these days, low approval rating of 40, approaching a midterm where most analysts believe the Democrats are likely to lose the House and possibly the Senate. Its legislative agenda is in a difficult position. Build Back Better is dead as we sit and talk. So this nomination came at a time when he kind of needed a win. In your experience, do you think there’s a lot of political impact when a president puts someone on the pitch one way or the other? Do you think there will actually be a material difference? I mean, 2009 was different because it was further, further from Midterms.

Stephanie: Right. But it’s still counted as one of his greatest achievements.

Ryan: Something about the dynamic of that nomination where you’re like, ‘You know what? That could be great for Democrats, the boost they need,” or do you think that just won’t have much of an impact? I know it’s hard to predict anything.

Stephanie: It’s really hard to predict. But bringing the first black woman to the Supreme Court is celebrated by most Americans. In terms of politics, you know, typically the people who run the Supreme Court are the base of the party on the left and right. There was never really a motivator on the Democratic side to push the vote.

Ryan: It has not?

Stephanie: It has not. But I think now we’ve lost the majority in court and you can see what’s happening where possibly women will lose their right to make their own abortion decisions. This is just the beginning of some things [that] are about to happen. Now you see that your vote matters because we were about to put the first black woman on the court. That’s celebrated. The other thing that could possibly happen is that some Republicans could overshoot, and you’re already seeing some senators talking about this being a quota choice or an affirmative action choice.

Ryan: It is. [Roger] Willow from Mississippi…

Stephanie: Sen. Wicker of Mississippi, Sen. [John Neely] Kennedy of Louisiana.

Ryan: Different, obviously not who you worked for.

Stephanie: Not that one. Another completely different one. And that’s not going to go down well with people, especially when they meet her. This person will not come out as an affirmative action pick. This person will appear as the most qualified person for the court if you just look at the women on the proverbial shortlist. Then they can continue their racist dog whistles. But I think most people won’t have the stomach for it, and it will turn around and bite them, just to continue the dog analogy there.

To last worries

Ryan: What keeps you awake very, very quickly at night? In terms of the dangers to the Biden administration in this process, what are you most concerned about?

Stephanie: Something we don’t know. You know, there’s an incredibly competent team doing the review at the White House, and I’m confident if there’s something, they’ll find it. But I honestly don’t think these incredible women would be in the positions they are in if there was anything. That keeps me up at night. But I always think the worst about everything.

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