Front-runner for high court didn't pay tax Breyer omitted Social Security for worker's wages

WASHINGTON — WASHINGTON -- Leading Supreme Court contender Stephen G. Breyer failed to pay Social Security taxes for a part-time housekeeper, White House officials confirmed last night as they sought to minimize the political effects of the disclosure.

Somewhat anxiously, President Clinton's aides worked to persuade reporters that the development was not a serious one and certainly not enough to disqualify the Boston jurist for the highest court.


The president was taking the weekend to think further about his selection for the seat being vacated by retiring Justice Byron R. White. It was unclear when the president learned that Judge Breyer had not paid until February the Social Security taxes that were due for a part-time household employee.

White House aides said they had known about it for some time.


Until the disclosure trickled out late yesterday, Judge Breyer's nomination to the court had been considered all but assured. He not only was first on Mr. Clinton's list, but ranking Republicans in the Senate had breezily told the president he might be confirmed 100-0.

The tax situation was immediately seen to be a problem by at least one member of the Judiciary Committee, Sen. William S. Cohen, a Maine Republican. "It's going to present a problem for the president," he told reporters.

Mr. Cohen pointed out that the Clinton administration had given up on not one, but two female candidates for attorney general in the face of disclosures that they had run into problems complying with sections of the law regarding household help.

The first was Zoe Baird, Mr. Clinton's initial choice as attorney general. Ms. Baird and her husband had hired a Peruvian couple to care for their small son. The Peruvians were in the country illegally, and Ms. Baird and her husband had neglected to pay Social Security taxes, as required by law. The administration's .. second choice, New York federal Judge Kimba Wood, and her husband also retained a nanny who was technically an illegal alien for one year while working for them.

But Judge Wood paid all applicable Social Security taxes. In addition, by the time the nanny worked for Judge Wood, the nanny was in line for a pending amnesty for illegal aliens, which she subsequently received. Nevertheless, the White House pulled the Wood nomination before formally making it, but after leaking it to the press.

Noting this, Mr. Cohen predicted that women's groups would object if the White House now chose to stand behind the nomination of a man to the Supreme Court even though he, too, had neglected to pay employment taxes for domestic help. It might create the perception "that there is a difference of treatment between men and women," he said.

"If this is substantiated, [Judge Breyer] is going to have to explain it away," Democratic Sen. Dennis DeConcini of Arizona told Reuters. "I do not think we are going to apply two standards here."

dTC White House officials were quick to attempt damage control last night.


"This is not a Zoe Baird problem," one White House official said late last night in a telephone interview from his home. "This is not a Kimba Wood problem."

The official went on to explain that Ms. Baird's problem was that she had not complied with a very public law regarding the hiring of illegal aliens and that Mr. Clinton felt that Judge Wood had not been entirely forthcoming with him.

White House officials said that Judge Breyer's situation was materially different and that Senate Republicans who actually knew the facts, such as Senate Minority Leader Bob Dole of Kansas, were not troubled by the revelation.

White House press spokesman Jeff Eller, reached at his home last night, said that administration officials had known about the housekeeper for weeks -- and that it had been brought to their attention by people on Capitol Hill.

"Everybody's been aware of this," Mr. Eller said.

Kenneth R. Feinberg, Judge Breyer's personal lawyer, reiterated this in an interview with the New York Times.


"The White House has known about this for weeks. The key senators have known about this for weeks," he said. "Everybody agreed that it was not any type of obstacle to confirmation. And it would be an outrage if somebody of Judge Breyer's qualifications would be denied a seat on the Supreme Court because of this technical probe."

Mr. Feinberg was quoted as saying that Judge Breyer paid the government the back taxes about six weeks ago. Apparently, the taxes amounted to no more than $400 a year. The woman in question, a naturalized citizen who came from Ireland when she was young, is now 81 years old and has worked for the Breyers one or two mornings a week for the last 13 years.

She received Social Security benefits during this time, meaning that Judge Breyer's failure to pay taxes put her at no financial jeopardy.

"She tidies up, she putters around, she bakes a few cookies," one family friend told the Times. "I think that she is at this point considered a part of the family more than a cleaning lady."

Until the Clinton administration Cabinet made the issue famous, an entire class of successful Americans, it seems, has been unaware that the law requires paying Social Security taxes for almost any full- or part-time help around the house.

The violation of the law in Judge Breyer's case may be technical and it may be trivial, but it may pose new difficult for Mr. Clinton at this point. Mr. Clinton has taken longer to fill a vacancy on the high court than any modern president. White House officials have floated various names, including Interior Secretary Bruce Babbitt, and most recently Judge Breyer.


In the meantime, public opinion surveys have shown Mr. Clinton's approval rating has sunk to the high 30s, an all-time low among presidents at this stage in their tenure -- and one reason appears to be that Americans believe he vacillates on major issues.