The Customary Microscope

July 12, 1994

Sen. Arlen Specter, the Pennsylvania Republican who is a member of the Judiciary Committee, says the panel has an obligation today to subject Judge Stephen Breyer to "the customary microscope" when it starts considering his nomination to the Supreme Court. It does, even in the case of a man who is already well known to many committee members because of his service as its counsel; even in the case of a nominee of such 24-karat credentials as to have been praised by a senator as liberal as Edward Kennedy and by one as conservative as Strom Thurmond.

Among the few voices raised against him so far is that of Sen. Howard Metzenbaum, the retiring liberal Ohio Democrat and member of the Judiciary Committee. He has charged the nominee is pro-business and anti-consumer. (Ralph Nader will testify against Judge Breyer on these grounds.) Actually what Judge Breyer has been is skeptical about government regulation. He believes that de-regulation serves consumers, and his work to deregulate the airlines industry, while a staff attorney on the Judiciary Committee, has resulted in lower air fares for most travelers.

That may surprise some would-be critics on the left. Would-be critics on the right may be surprised to learn that, as The Sun's Lyle Denniston has reported, when Mr. Breyer was a clerk to Justice Arthur Goldberg, he developed an important "privacy right" precedent for Roe vs. Wade, the key abortion-rights decision, a decade later.

There may be other surprises about Justice Breyer. He lists over two dozen learned articles and books in his biographical sketch. By his office's count, he has written 584 opinions in his 13-plus years on the U.S. Court of Appeals for the First Circuit in Boston. Over 500 of those opinions were for the court majority (evidence of his ability at building consensus), so few of them are likely to be controversial. But even so, when such a mass of writing is subjected to close scrutiny, there will be something for critics and supporters to chew on.

Expect no surprises regarding Judge Breyer's intellect. He is enough of an egghead to have been offered the deanship of Harvard Law School and to have been a finalist for the presidency of the university. Some liberals believe the best reason for supporting Judge Breyer is the prospect that the Supreme Court's present intellectual-in-residence, the very conservative Antonin Scalia, will be more severely challenged from his left.

Judge Breyer seems to be headed to landslide confirmation. Nevertheless, when it begins looking through its microscope, the Judiciary Committee should be thorough and unsentimental. Supreme Court justices serve for life, if they so choose. If Justice Breyer served till he was the age of the retiring justice he is nominated to replace, Harry Blackmun, he could be building consensus and/or dueling with Justice Scalia into the 2020s.

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