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Clinton names Judge Breyer to Supreme Court

WASHINGTON — WASHINGTON -- President Clinton, almost certainly avoiding a confirmation battle, chose for the Supreme Court yesterday federal appeals Judge Stephen G. Breyer, a soft-spoken moderate with friends in the Senate across the political spectrum.

"An excellent choice," said Sen. Strom Thurmond, the conservative Republican from South Carolina.

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"A brilliant legal scholar with a profound understanding of the law and its impact on the lives of real people," added liberal Democratic Sen. Edward M. Kennedy of Massachusetts.

That broad support reflects the fact that Judge Breyer is likely to move comfortably into the court's dominant center, strengthening its control of most major rulings.

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"Without a doubt, he is one of the outstanding jurists of our age," Mr. Clinton told reporters outside the Oval Office. "He has a clear grasp of the law, a boundless respect for the constitutional and legal rights of the American people, a searching and restless intellect, and a remarkable ability to explain complex subjects in understandable terms."

Judge Breyer, 55, is chief judge of the 1st U.S. Circuit Court of Appeals in Boston. He attended Stanford University, Oxford and Harvard Law School, and served as counsel for the Senate Judiciary Committee in the late 1970s, earning a reputation for even-handedness among senators of both parties. He is married and has three children, and his confirmation would give the court two Jewish members.

The 37-day search for a successor to Justice Harry A. Blackmun consumed the White House in its final week and reinforced the perception of the president as indecisive. In the end, Mr. Clinton picked a judge who had been a finalist for a court vacancy a year ago, but the decision was so hurried that Judge Breyer was not present when the announcement was made by the president -- a violation of tradition. In fact, Judge Breyer told friends as late as Thursday night that he thought he was out of the running. The president's call came less than an hour before the announcement.

Contacted afterward in Boston, the judge said his role on the court would be "to make the average person's ordinary life better. That's an incredible challenge, and I feel very humbled simply thinking about it."

Not everyone was pleased by the selection, which the president said had focused ultimately on Judge Breyer, Interior Secretary Bruce E. Babbitt and federal appeals Judge Richard S. Arnold of Arkansas.

Latino activists and lawyers' groups have long insisted that it was high time for a Hispanic justice. It became apparent yesterday that no Hispanic choice was ever seriously considered as a finalist, including federal Judge Jose A. Cabranes of New Haven, Conn., whose name had been floated by the White House. Even the president sounded as if the choice he really had wanted to make was his old friend Judge Arnold, whom the president said he rejected because he is battling cancer.

White House Counsel Lloyd N. Cutler said the president and his advisers, after extensive discussions with the 58-year-old Judge Arnold and his doctors, concluded that they couldn't be certain he could serve "over the span of 15 to 20 years."

But it was the president's treatment of Mr. Babbitt that had many Democrats -- and some Republicans -- gnashing their teeth.

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The president and Mr. Cutler insisted that the sole consideration was Mr. Clinton's conclusion that Mr. Babbitt was indispensable to the administration. This was the same reason cited a year ago when Mr. Babbitt -- and Judge Breyer -- were passed over in favor of Judge Ruth Bader Ginsburg.

"I couldn't bear to lose him from the Cabinet," the president said.

But as the decision dragged out -- and Mr. Babbitt's name sat there, having been leaked by White House officials -- he became a sitting target for Senate conservatives who find him too liberal on environmental issues.

One of those conservatives, Sen. Orrin G. Hatch, top Republican on the Senate Judiciary Committee, took credit yesterday for helping to scuttle the appointment, saying that the president asked him whether Mr. Babbitt's selection would precipitate a confirmation battle.

"I candidly told him the truth," the Utah senator said. ". . . that there were concerns on both sides of the floor."

Senate Democrats disputed this, and even one Republican on )) the Judiciary Committee, Arlen Specter of Pennsylvania, expressed disappointment that it wasn't Mr. Babbitt because a choice with real-world political experience would have brought "diversity" to the court.

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"I don't think you ought to avoid a fight if it means getting a better person," Mr. Specter said.

Nevertheless, Mr. Hatch crowed that by choosing a judge who was "moderate-to-liberal," Mr. Clinton had picked someone who was a "slam dunk" in the Senate. Hearings are expected in mid-July.

But liberal Democratic Sen. Howard M. Metzenbaum of Ohio grumbled that Judge Breyer was "moderate-to-conservative" and characterized him as a supporter of big business.

In choosing a person described by all sides as a moderate, Mr. Clinton was tapping exactly the sort of justice he had in mind -- a consensus builder who would give the moderate bloc dominance on the high court.

Judge Breyer would edge the overall court toward the right of center, however. He replaces the most liberal justice, Harry A. Blackmun, and his record is markedly less liberal. If the two have sometimes taken parallel positions on any sector of the law, it has been on criminal law issues -- the area of least liberalism in Justice Blackmun's record.

Judge Breyer is believed to favor abortion rights, though his opinions suggest he lacks the depth of commitment of Justice Blackmun, who wrote the Roe vs. Wade decision that legalized abortion in 1973.

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In the New England jurist, the president found a judge with a philosophical record that nearly matches that of Justice Ginsburg. Judge Breyer, too, has been a moderate most of the time but with some liberal leanings, on individual rights issues in particular.

As with Justice Ginsburg, Judge Breyer does not like to dissent often from his colleagues, preferring to reach for common ground rather than stand alone. Some former law clerks, in fact, have said that it actually pained him to dissent.

Judge Breyer's selection is expected to add voting strength to the already dominant center of the court, made up of the four moderate justices who already are in control.

In that bloc are the court's two women, Justices Ginsburg and Sandra Day O'Connor, plus Anthony M. Kennedy and David H. Souter.

With Judge Breyer, that bloc would have a clear voting majority and thus could be in absolute control on nearly every issue that splits the court. Despite admitted efforts of the Reagan and Bush years to find conservative jurists, this has been the trend of the court in recent years.

The likely voting patterns would further isolate the lone remaining justice who most often takes a liberal stance, Justice John Paul Stevens. It also is likely to diminish further the influence of the court's conservative bloc, composed of Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

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And on a court not noted for prose that registers with ordinary citizens, Judge Breyer may help to fill the void. "He writes clear, crisp, brisk opinions in prose people can read," said Kathleen M. Sullivan, a Stanford law professor.

The selection of Judge Breyer had its rough edges, but in the end it had its moments of grace as well.

Mr. Babbitt was a gracious loser, saying: "As enticing as the Great Indoors was, the Great Outdoors is where I want to spend my time . . . And now I'm off to Yellowstone."

And when Mr. Clinton phoned Judge Breyer, the two talked about the court and then shared a poignant personal moment.

"I wish that our parents were here," he told the president.


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