Breyer seems a shoo-in for high court


WASHINGTON -- Supreme Court nominee Stephen G. Breyer goes before the Senate Judiciary Committee tomorrow with no apparent need to prove anything to win Senate approval, but with a real chance -- if he wants to take the risk -- to reveal more of the kind of justice he might be.

The 55-year-old federal appeals judge from Boston was chosen eight weeks ago by President Clinton mainly to avoid any trouble with the Senate over a replacement for retiring Justice Harry A. Blackmun. No problems have surfaced.

Judge Breyer begins the public process with several major advantages, all known to Mr. Clinton when he selected the judge as his nominee:

* Of the finalists Mr. Clinton considered, Judge Breyer clearly was the favorite among Republicans on the Judiciary Committee and apparently in the full Senate.

* He is a much-admired alumnus of the Judiciary Committee's staff, where he was notably accommodating to members of both parties and of differing points of view, including its conservative Republicans.

* He has been linked, while serving as committee staff chief and inbecoming a federal judge, with an influential political patron and the committee's most powerful liberal, Sen. Edward M. Kennedy, D-Mass.

* He became a federal appeals judge in the waning days of the Democratic presidency of Jimmy Carter in 1980 because his nomination by a Democrat was also embraced -- a political rarity -- by the newly elected Republican president, Ronald Reagan.

* In 14 years on the Boston-based appeals court, Judge Breyer has compiled a record of cautious and modest use of judicial authority, and he has written no stand-out decisions that affront any major political constituency. In addition, his paper trail of more than 90 public speeches and lectures and more than 40 articles or books -- many on highly technical subjects -- contains nothing that so far threatens his nomination.

* Although he once served as a law clerk to one of the most liberal Supreme Court justices, Arthur L. Goldberg (and in fact will be in the line of direct succession to the seat held by Justice Goldberg), Judge Breyer is viewed as nowhere near as liberal as his court mentor.

In short, Mr. Clinton's new nominee appears to be the politically safest nominee to have been put forth in years -- a factor that could make the Judiciary Committee's hearings a largely uneventful exercise, unless Judge Breyer unveils some uncharacteristically startling views on the Constitution and the law.

There are many core controversies in the law on which his views are little-known -- such as abortion, religious freedom, civil rights andvoting rights -- and senators are likely to try to draw Judge Breyer out on those during the hearings to be televised on C-SPAN and Court TV.

With the committee insisting that the Senate should give no Supreme Court nominee a free pass to the bench, aides to committee members are drawing up an array of tough questions to test Judge Breyer on areas of the law he would face as a justice.

Like many recent nominees, Judge Breyer could spar rather than fully answer such probing, or he could opt for fuller disclosure of how and what he thinks about major issues. There is a potential for difficulty, though, should he make remarks that offend influential senators.

But if he makes no such missteps, and no one finds a hidden problem in his background, he appears to be on his way to approval before summer ends, well in time for the court's next term, which begins Oct. 3.

"This is someone who is liked by both sides, and known personally by both sides," said Elliot M. Mincberg, legal director of People for the American Way, a liberal advocacy group that has expressed reservations about the nominee's judicial record. "Absent unexpected revelations, at this point it looks extremely positive" for Judge Breyer, he said.

"This will be nowhere near the controversies" that surrounded Supreme Court nominations in the 1980s and in 1991, Mr. Mincberg added. Those included the defeat of nominee Robert H. Bork in 1987 and the angry and prolonged controversy before nominee Clarence Thomas was approved.

The fact that Judge Breyer is a "very centrist, middle-of-the-road nominee" who is "self-aware of his limitations as a judge" is one major difference, he suggested. Another, he said, is the absence of a pitched battle within the committee and the Senate over the direction of the Supreme Court.

In fact, few senators and few observers outside the Senate appear to think that Judge Breyer has any agenda for changing the court's direction, or any real opportunity to do so. The court is controlled by a cadre of five moderate-to-conservative justices, and Judge Breyer probably would strengthen that bloc.

"If confirmed, he seems likely to reinforce the increasingly influential middle of the court," the liberal American Civil Liberties Union predicted after studying Judge Breyer's 580 judicial opinions. "His opinions, thus far, do not demonstrate the passionate commitment to individual justice that has become Justice Blackmun's hallmark in recent years."

Agreeing with that assessment, but expressing gratitude for it, a conservative research group, the National Legal Center for the Public Interest, remarked: "In the civil rights area, Breyer is likely to be an improvement over Blackmun. . . . In contrast with Judge Breyer, Justice Blackmun over the 24-year period he has served on the bench has emerged as the court's most adamant activist."

Because the moderate Judge Breyer would be replacing the liberal Justice Blackmun, it is commonly assumed that the new justice will help edge the court toward the more conservative end of the judicial middle of the road.

In fact, senators on the Judiciary Committee, whether they are liberal, conservative or in between, are likely to be looking for indications of differences between Judge Breyer and Justice Blackmun.

When questioning by the senators begins, committee Chairman Joseph R. Biden Jr., D-Del., is expected to explore some of those indications with inquiries about Judge Breyer's view of the "right privacy" -- a favorite topic of Mr. Biden's.

In Supreme Court nomination hearings, the "right of privacy" is the key to three lines of inquiry: does the nominee believe that a right of privacy exists, even though it is not mentioned specifically in the Constitution; if so, what does the nominee think such a right includes; and, does the nominee think that the court ever should decree rights -- like privacy -- that are not included in the Constitution's wording?

Justice Blackmun made his name in history as a justice by writing the famous decision in Roe vs. Wade in 1973 acknowledging a constitutional right of privacy, and finding within that right the more specific right of a woman to have an abortion with a doctor's consent. In that decision, Justice Blackmun borrowed some of the ideas spelled out initially by Justice Goldberg in 1965, when the court established a married couple's right to use birth control devices.

Judge Breyer was Justice Goldberg's law clerk in 1965, and in that role became the author of the draft that ultimately would express Justice Goldberg's views on privacy rights. Said Judge Breyer's draft: "There are fundamental personal rights . . . which are protected from infringement by the government though not specifically mentioned in the Constitution."

Both liberal and conservative activists, anticipating questions by Mr. Biden on the right of privacy, want to know whether Judge Breyer agrees with what he himself wrote in 1965, or whether he will contend that the thoughts he expressed were merely Justice Goldberg's.

Thus, the early round of questions this week could begin at least to hint at the kind of justice Judge Breyer could be.

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