Breyer seems a shoo-in for high court

July 11, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee Stephen G. Breyer goes before the Senate Judiciary Committee tomorrow with no apparent need to prove anything to win Senate approval, but with a real chance -- if he wants to take the risk -- to reveal more of the kind of justice he might be.

The 55-year-old federal appeals judge from Boston was chosen eight weeks ago by President Clinton mainly to avoid any trouble with the Senate over a replacement for retiring Justice Harry A. Blackmun. No problems have surfaced.

Judge Breyer begins the public process with several major advantages, all known to Mr. Clinton when he selected the judge as his nominee:

* Of the finalists Mr. Clinton considered, Judge Breyer clearly was the favorite among Republicans on the Judiciary Committee and apparently in the full Senate.

* He is a much-admired alumnus of the Judiciary Committee's staff, where he was notably accommodating to members of both parties and of differing points of view, including its conservative Republicans.

* He has been linked, while serving as committee staff chief and inbecoming a federal judge, with an influential political patron and the committee's most powerful liberal, Sen. Edward M. Kennedy, D-Mass.

* He became a federal appeals judge in the waning days of the Democratic presidency of Jimmy Carter in 1980 because his nomination by a Democrat was also embraced -- a political rarity -- by the newly elected Republican president, Ronald Reagan.

* In 14 years on the Boston-based appeals court, Judge Breyer has compiled a record of cautious and modest use of judicial authority, and he has written no stand-out decisions that affront any major political constituency. In addition, his paper trail of more than 90 public speeches and lectures and more than 40 articles or books -- many on highly technical subjects -- contains nothing that so far threatens his nomination.

* Although he once served as a law clerk to one of the most liberal Supreme Court justices, Arthur L. Goldberg (and in fact will be in the line of direct succession to the seat held by Justice Goldberg), Judge Breyer is viewed as nowhere near as liberal as his court mentor.

In short, Mr. Clinton's new nominee appears to be the politically safest nominee to have been put forth in years -- a factor that could make the Judiciary Committee's hearings a largely uneventful exercise, unless Judge Breyer unveils some uncharacteristically startling views on the Constitution and the law.

There are many core controversies in the law on which his views are little-known -- such as abortion, religious freedom, civil rights andvoting rights -- and senators are likely to try to draw Judge Breyer out on those during the hearings to be televised on C-SPAN and Court TV.

With the committee insisting that the Senate should give no Supreme Court nominee a free pass to the bench, aides to committee members are drawing up an array of tough questions to test Judge Breyer on areas of the law he would face as a justice.

Like many recent nominees, Judge Breyer could spar rather than fully answer such probing, or he could opt for fuller disclosure of how and what he thinks about major issues. There is a potential for difficulty, though, should he make remarks that offend influential senators.

But if he makes no such missteps, and no one finds a hidden problem in his background, he appears to be on his way to approval before summer ends, well in time for the court's next term, which begins Oct. 3.

"This is someone who is liked by both sides, and known personally by both sides," said Elliot M. Mincberg, legal director of People for the American Way, a liberal advocacy group that has expressed reservations about the nominee's judicial record. "Absent unexpected revelations, at this point it looks extremely positive" for Judge Breyer, he said.

"This will be nowhere near the controversies" that surrounded Supreme Court nominations in the 1980s and in 1991, Mr. Mincberg added. Those included the defeat of nominee Robert H. Bork in 1987 and the angry and prolonged controversy before nominee Clarence Thomas was approved.

The fact that Judge Breyer is a "very centrist, middle-of-the-road nominee" who is "self-aware of his limitations as a judge" is one major difference, he suggested. Another, he said, is the absence of a pitched battle within the committee and the Senate over the direction of the Supreme Court.

In fact, few senators and few observers outside the Senate appear to think that Judge Breyer has any agenda for changing the court's direction, or any real opportunity to do so. The court is controlled by a cadre of five moderate-to-conservative justices, and Judge Breyer probably would strengthen that bloc.

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