He'll likely win easy Senate confirmation, but his way of making will draw fire
by Ted Gest
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Supreme Court justices tend to be described as liberals or conservatives, but Stephen Breyer defies labels. President Clinton's second high-court nominee is the kind of pragmatist who baffles court watchers who prefer a more predictable justice. This week, the Senate Judiciary Committee will press Breyer on how he goes about deciding cases. There is every chance when the probing ends that he will command bipartisan support and be confirmed.
Unlike recent nomination fights that centered on abortion and social issues, the Breyer hearings will feature antitrust and government regulation. The nominee, who turns 56 next month, has made his most significant mark on those subjects as a federal appeals judge, Senate aide and Harvard law teacher. His business decisions most often favor government agencies and large corporations. He has ruled for defendants in 17 of 19 antitrust cases, a record similar to the most pro-business judges appointed by Ronald Reagan. "He will move the court's center of gravity to the right," says Prof. William Kovacic of George Mason University, a business law expert.
That prospect alarms critics of antitrust trends. As a backer of mergers that may kill small firms, "Breyer believes there is nothing wrong with predatory pricing," says Charles Mueller, editor of the Antitrust Law and Economics Review. Mueller predicts that Breyer will support challenges to any Clinton health care plan that tries to curb mergers of big hospitals. Result: "Prices will skyrocket."
Environmentalists will take aim at Breyer's ideas on regulation. He stresses a cost-benefit analysis that questions whether government should force industry to spend huge sums eliminating tiny risks of harm from products or pollution. That unacceptably minimizes ills resulting from neighborhood contamination, says law Prof. Zygmunt Plater of Boston College. He complains that Breyer "doesn't understand how people live in the real world." Of course, pro-business forces are delighted with Clinton's choice. They hope Breyer will encourage other justices to ride herd on regulators, who largely have been ignored by a court loath to tackle technical issues.
Property rights advocates hope Breyer will bolster the fragile court majority that last month curbed zoners' power to restrict use of private land without paying owners. "We will articulate our arguments to appeal to Breyer," says Nancie Marzulla of Defenders of Property Rights, which wants his votes in expected challenges to laws on wetlands and endangered species.
Breyer's style of judging may be the wild card. The court often interprets vague federal laws. A conservative bloc led by Justice Antonin Scalia focuses on statutes' literal language. That leads to surprises, like a 5-to-4 ruling in April that overturned precedent and said Congress had not authorized lawsuits against those who aid and abet securities frauds. Breyer, a former adviser to Massachusetts Sen. Edward Kennedy, favors gauging the general intent of Congress. "He is willing to look at the larger context and reach results consistent with legislative aims," says Ernest Gellhorn, a Washington lawyer, who predicts Breyer will help lead the court on a more consistent path.
Breyer watchers minimize concerns that he will follow a lockstep march against liberalism. He is no activist in the Thurgood Marshall mold. But his skills at brokering disputes between extremes, which he displayed on a panel that set sentencing rules for federal judges, should help coalesce a court that tends to bog down in ideological factions. His views on business law, for example, reflect "the consensus, both political and academic," contends Daniel Bussel, an ex-law clerk both to Breyer and Justice Sandra Day O'Connor. "The only `ideology' you can paint on him is American Pragmatism."
