In picking Stephen Breyer, he opts for a consensus builder
by Kenneth T. Walsh, Ted Gest, Matthew Cooper
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By Bill Clinton's own standards, the choice of federal Judge Stephen Breyer for the Supreme Court last week didn't quite measure up. Breyer, though a brilliant, respected jurist, lacks an important credential that the president said he was looking for: "real world" experience or a compelling life story that might add a fresh perspective to the high court.
But Breyer, 55, chief judge of the U.S. Court of Appeals in Boston, was a nearly risk-free choice. He is virtually guaranteed confirmation in the Senate, where he once served as chief counsel to the Senate Judiciary Committee under Sen. Edward Kennedy. And the mild-mannered Breyer is not likely to anger many large constituencies. "There's no downside to Breyer," says a senior Clinton adviser. "He is a safe, smart choice."
Breyer has carved out a moderate-liberal judicial record somewhat resembling that of Ruth Bader Ginsburg, Clinton's first nominee to the court. A preliminary report by the liberal Alliance for Justice concluded that his opinions "do not reveal any particular ideological slant and do not appear to be results-oriented."
No "knee jerk" type. Breyer's rulings in both criminal and civil rights cases cannot be neatly categorized. "He isn't a knee-jerk law-and-order type who always votes for the government, but neither is he a liberal who always votes for the little guy," says Martha Matthews, a former law clerk. Although Breyer has taken a scholarly, balanced approach on most legal questions, Matthews could envision his issuing controversial opinions like that of retiring Justice Harry Blackmun, who recently disavowed capital punishment. "Judge Breyer is a stubborn New Englander -- he would do something surprising or controversial if that is where his analysis led him."
The Boston judge has the potential to help build consensus on an increasingly fractious high court. Insiders say he demonstrated this quality most dramatically between 1985 and 1989 as a member of the U.S. Sentencing Commission, which wrote federal guidelines for criminal sentences. Breyer is credited with working with conservative Arizona law professor Michael Block and other panel members across the ideological spectrum to forge compromises that translated vague congressional directives into a detailed set of rules for the judiciary.
Some liberals were disappointed that Clinton did not tap a reliable vote for their cause. Abortion-rights leaders expressed concern about Breyer's murky record on that subject. And consumer advocate Ralph Nader assailed Breyer as "hostile to regulatory law enforcement." Nader charged that Clinton had "locked the court into an anticonsumer, antiworker, antienvironmental mode," and predicted that various labor unions and other liberal groups would oppose Breyer. But Kennedy's support will likely keep the left at bay. One additional possible flash point: Breyer's failure to fill out required forms and to pay withholding taxes for his household help -- echoes of the "nannygate" problem. The White House says that Breyer has complied with the law.
Not No. 1. Breyer was never the president's first choice. In 1993, he was a runner-up when Clinton selected Ginsburg. And Clinton first hoped Senate Majority Leader George Mitchell would succeed Blackmun. The president also considered Interior Secretary Bruce Babbitt and Judge Richard Arnold of Arkansas but decided late Friday afternoon that the Breyer nomination posed fewer questions and less controversy in the Senate confirmation process. Babbitt faced opposition from Western Republicans for his liberal environmental stands. Arnold has been treated for lymphatic cancer, and White House advisers also worried he could be pictured as an Arkansas crony of Clinton. "The doubts about Babbitt and Arnold couldn't be resolved," says a Clinton aide, "and so he went with Breyer."
In making the choice, the president once again exhibited his tendency to procrastinate when making tough decisions. One problem is that, when Clinton is familiar with an issue, he tends to get obsessive about delving into every conceivable consequence or permutation of a decision rather than trust his instincts. As a former professor of constitutional law and Arkansas attorney general, Clinton felt he knew the issues involved in selecting a new justice better than anyone on his staff. "After every meeting [on the court vacancy], he always had more questions he wanted answered," says a senior aide. "He was always afraid he had missed something."
In the end, President Clinton settled for a top-notch judge, but he deferred his desire for boldness or innovation for another day.
