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Stephen Breyer may be the right man at the wrong time
By HARVEY SILVERGLATE  |  June 11, 2009


This article originally appeared in the Boston Phoenix on May 27, 1994

Judge Stephen Breyer, Bill Clinton's latest pick for the Supreme Court, has attracted support so broad that it spans ideological and political differences.

And that is precisely why Breyer, a Cambridge resident who is chief judge of the First Circuit Court of Appeals, in Boston, may be the right choice at the wrong time.

Breyer is a technocrat, a brilliant, facile thinker who loves legal minutiae. Every court, including the US Supreme Court, needs technocrats, and Breyer is without doubt the best and the brightest of his kind.

But Clinton was widely reported to be looking for someone not from the traditional judicial mold – someone, instead, who could shake up the Supreme Court and infuse it with the kind of real-life experience, common sense, and humanity that can temper the neat logic of the law. He has not found such a person in Stephen Breyer.

Indeed, what little opposition has been voiced thus far comes from those on the extreme ends of the political spectrum, who worry that Breyer will not carry their ideological water.

Thus, Senator Howard Metzenbaum (D-Ohio) is unhappy because Breyer is skeptical of the ability of the same government that runs the Postal Service to regulate the nation's commercial life.

Likewise, Arthur Kropp, president of the liberal group People for the American Way, and Kate Michelman, president of the National Abortion and Reproductive Rights Action League, have expressed dismay over Breyer's dissenting vote in a 1989 case in which the First Circuit struck down a state law requiring parental permission before a minor could have an abortion. Breyer voiced approval of parental permission. Though arguably problematic, such a position hardly signals opposition to a woman's right to choose.

On the right, a conservative group known as American Cause has announced it will oppose Breyer's confirmation because it fears he will interpret the Constitution too loosely.

Such discouraging words, though, are the exception.

Since Clinton announced Breyer's appointment to replace retiring Justice Harry Blackmun, Breyer has garnered support from liberals like Senator Ted Kennedy (his sponsor), and doctrinaire conservatives like Senator Orrin Hatch (R-Utah) and Senate Minority Leader Bob Dole (R-Kansas).

Both Bruce Fein, an ultraconservative legal scholar, and Harvard Law professor Laurence Tribe, a liberal who may be the nation's leading constitutional-law expert, have hailed Breyer's selection. Fein recently wrote that "champions of judicial restraint and enlightened jurisprudence should be cheering." Tribe commented, "Unlike people who parade their brain in front of others, and unlike people who wear their hearts on their sleeves, I think Steve will lead with his head. When Breyer speaks, his fellow justices will listen."

When Breyer's career and his considerable body of written judicial opinions are studied and understood, the reason for such praise comes into focus. Wall Street Journal legal reporter Paul M. Barrett came closest to the mark, describing Breyer as "a powerful thinker and clear writer," but also "something of a technocrat." Barrett went on:

What will frustrate those who try to pigeonhole Judge Breyer as they comb through his voluminous record of opinions and other writings is the lack of an overarching philosophy. Because Judge Breyer doesn't have a distinct agenda or ideology, his addition to the court won't affect its current conservative tilt in any dramatic way.

What emerges from Breyer's elegant and clear writing is a judge who avoids knee-jerk reactions, closely examines the facts, draws fine distinctions, and does not engage in verbal pyrotechnics and obfuscations.

Breyer practices the time-honored judicial craft of drawing distinctions between cases based upon sometimes small but meaningful factual variations that do, and indeed should, affect the outcome.

Thus, though Breyer agreed that the legislature may require that a parent of a pregnant girl should have some say over whether she should have an abortion, he also voted in 1990, along with a majority of his colleagues on the First Circuit, to overturn the Reagan-era regulations prohibiting federally funded family-planning clinics from offering abortion counseling. (The gag rule was affirmed, however, by a five-to-four vote of the Rehnquist Supreme court in the infamous case of Rust v. Sullivan. The Clinton administration has since lifted the rule.)

First Amendment fan

With respect to the critical legal issues of our day – whether freedom will be preserved in an age of growing governmental power, and whether equality under the law will be preserved in a diverse society in which ethnic, racial, sexual, and other groups are vying for preferential treatment – Breyer's record is cause for cautious optimism.

His opinions demonstrate considerable respect for the First Amendment.

His view in the abortion-clinic gag-order case, for example, was based upon the right to free speech: the rule prohibited health professionals at clinics that received federal funds from mentioning the option of abortion to patients.

He demonstrated sensitivity to religious liberty in a 1985 case when, in a relatively rare dissent, he sided with students at Boston University who refused, for religious reasons, to disclose certain government-mandated information on financial-aid forms. Breyer wrote that to deny financial aid for a "minor deviation from the bureaucratic norm in a nation as diverse as ours, housing so many strongly held but differing points of view, is to exacerbate conflict where it could be muted."

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  Topics: Flashbacks , Mario Cuomo, U.S. Government, U.S. State Government,  More more >
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