SEN.HOWARD Metzenbaum criticized Judge Stephen Breyer at...

July 14, 1994|By THEO LIPPMAN JR.

SEN.HOWARD Metzenbaum criticized Judge Stephen Breyer at his confirmation hearing because he had not stepped aside in eight cases in which he might have had a slight conflict of interest.

The real problem is that he had to and did step aside in all asbestos cases because he knew he had a more significant conflict of interest. Why is that a problem? Because he was hired to rule in cases like that. That's what we pay him for. He should never have compromised himself by making risky investments in Lloyd's of London (after he became a judge) which he knew had the potential for a conflict of interest.

When Judge Breyer finally decided that investment was complicating his life on the bench, he asked Lloyd's to let him out. To which, as Newsday has revealed, he was told, sure, for $245,912. Even for a multi-millionaire judge, that's a pretty steep price to pay to be 100 percent ethical. And he didn't pay it.

* * * *

I'm confused. Supreme Court nominees are usually escorted to the witness table at confirmation hearings by their home state senators. Breyer was escorted by Senators Kennedy and Kerrey of Massachusetts, where he now lives and works, and Feinstein and Boxer of California, where he was born and raised.

So is he an Easterner or a Westerner? If he's an Easterner, then this side of the country will control the court with five justices: Breyer, Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg.

But if he's a Westerner, then he, William Rehnquist, Sandra Day O'Connor and Anthony Kennedy balance the Easterners, with John Paul Stevens, a Chicagoan, the geographic swing vote.

(It's a small world. Rehnquist and O'Connor were classmates at Stanford Law School in the early 1950s. Then Breyer and Kennedy overlapped as undergraduates at Stanford for two years in the mid-'50s. And from the fall of 1957 through the spring of 1961, three members of the Supreme Court were on the Harvard campus as students: some combination of Ginsburg, Scalia, Souter and Kennedy.)

* * * *

Liberals like Senator Metzenbaum fear Mr. Justice Breyer will be a pretty conservative justice. He is certainly no Harry Blackmun, the justice he replaces. But, then, when Harry Blackmun was at the stage of his career that Judge Breyer is, he was no Harry Blackmun, either.

Blackmun was one of the two or three most conservative justices in the early 1970s. In his just concluded last term, he was the

most liberal. He voted the other way from the conservative Chief Justice Rehnquist 35 times, the most of any justice.

Speaking of correcting one's course, look at Justice Souter. Only three years ago, in his first term, he voted with Rehnquist more regularly than did any other justice but one. This term, on the 35 cases in which Rehnquist and Blackmun disagreed, Souter voted 24 times with Blackmun, more than any other justice.

So you never can tell.

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