By HARVEY SILVERGLATE  |  June 11, 2009

Nonetheless, Breyer's restrained legal opinions can leave one with the feeling that he is, to an uncomfortable degree, too much of a legal technocrat, too enamored of sheer logic that's devoid of some of the messier details of real life. Dave Margolick, of the New York Times, recently observed:

Some of the judges with whom he has sat&ldots;find his intellectually nimble, facile ways a bit disconcerting. "He's able because of his brilliance to support any position," said one. "He has to guard against that, and we, his colleagues, have to, too. We have to count to 10 before we buy what he's selling."

Before settling on Breyer, the president gave every indication that he was looking for someone very different. At various times Clinton considered highly political choices such as New York Governor Mario Cuomo (who took himself out of the running for the vacancy that went to Ruth Bader Ginsburg) and retiring Senate majority Leader George Mitchell (ditto this time around). In both instances, Clinton couldn't quite bring himself to name Secretary of the Interior Bruce Babbitt, a former Arizona governor who Clinton reportedly hoped would emulate Hugo Black, the former senator named to the Court in 1937 who fought for freedom, dignity, and equality for nearly four decades.

But these are difficult times for Clinton, and because of that he appears unwilling to undergo the kind of confirmation battle that the selection of a controversial figure might have triggered. With Breyer, Clinton took the path of least resistance.

Passion gap

Breyer's approach is perhaps best exemplified in an opinion he wrote on February 28 of this year. Given the constraints he was under, he no doubt ruled the right way – but he did so in a way that was devoid of the passionate outrage, or at least the skepticism, that the situation invited.

Daniel Gendron's case came before the appeals court after he was convicted of buying child pornography. Federal postal inspectors, emulating similar child-porn stings across the country, identified Gendron as a target, corresponded with him, and offered him an opportunity to buy sexually explicit materials. Gendron did so, and was promptly arrested.

There is an entire squad of postal inspectors, flanked by federal prosecutors, who specialize in this disgusting method to entice, arrest, and imprison eccentrics, most of whom are harmless. The feds use taxpayers' money to set up bogus companies that advertise the distribution of child-porn magazines, catalogues, and videotapes. This method does not catch those who exploit children to produce pornography, only those who read it in the privacy of their homes.

In reviewing the conviction of Gendron, Breyer dealt with the defendant's claim that the tactics used by the postal inspectors went over the line and enticed someone who would not otherwise have committed the crime, thereby constituting unlawful entrapment. Breyer rejected the claim.

Given the law as crafted some years earlier by a Congress stampeding into the "family values" arena, and buttressed by the judicial opinions of a Supreme Court loaded with Reagan and Bush appointees not particularly bothered by such tactics (although even the court reversed one child-porn conviction, in 1992, on entrapment grounds), the outcome of the Gendron appeal was fairly predictable, regardless of who was sitting on the reviewing panel of the First Circuit.

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  Topics: Flashbacks , Mario Cuomo, Judiciary, U.S. Courts,  More more >
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