Breyer voices reluctance to overturn rulings on abortion, death penalty

WASHINGTON — WASHINGTON -- Without making specific promises, Judge Stephen G. Breyer indicated to the Senate Judiciary Committee yesterday that he would not seek as a Supreme Court justice to overturn abortion rights or the death penalty.

He explicitly said that he regarded both a woman's right to seek an abortion and states' power to execute murderers to be settled constitutional issues, and he implied strongly that he would seldom vote to overrule such rulings.


In addition, he expressed a hesitancy about using the court's power to create rights beyond those mentioned specifically in the Constitution. He sought to distance himself from the idea -- embraced by some liberal justices on the modern-day court -- that a general "right of privacy" could be a significant source of newfound rights. Abortion, for example, had been established in 1973 as part of a right of privacy.

Those kinds of answers tended to solidify Judge Breyer's support in the Judiciary Committee yesterday, leading to the likelihood of unanimous approval when the committee votes. All 18 senators on the panel had a chance to question him at least once by the end of the day yesterday, and none was openly critical of his nomination. Most, in fact, were openly flattering about his intellect and his judicial credentials.


The panel will vote early next week, said committee chairman Joseph R. Biden Jr., a Delaware Democrat. Full Senate approval, with few negative votes foreseen, could come by the end of next week.

The nominee, although avoiding direct descriptions of his own views on hot judicial controversies of the day, gave indirect answers that left the senators with the impression that he would not seek to lead the court into uncharted constitutional territory, or to undo major decisions.

It was near the end of yesterday's questioning that he made his clearest statement on abortion rights -- an issue that most panelists seemed far less interested in exploring than they had with past nominees.

Responding to a question from Sen. Carol Moseley-Braun, an Illinois Democrat, about whether he believed a woman had a "right to be let alone" that included the right to decide "whether or not to be pregnant," Judge Breyer replied:

"That is the determination of Roe vs. Wade. Roe vs. Wade is the law of this country, at least for more than 20 years that there is some kind of basic right of the nature you describe. Recently, [in 1992], the Supreme Court has reaffirmed that right . . . and so, in my opinion, that is settled law."

On Tuesday, he had told the committee that he regarded the constitutionality of the death penalty to be settled and said that he had no personal view that would contradict that. Yesterday, he repeated that comment twice under questioning from Sen. Arlen Specter, a Pennsylvania Republican, and went on to add that justices should be "careful" when facing the possibility of overturning matters that are settled.

He also was pressed, in the final questions of the day by Sen. Orrin Hatch, a Utah Republican, about when judges should cast aside prior decisions on constitutional issues. Judge Breyer said: "People build their lives on what they believe the law is. . . . People can adjust; once they've adjusted, [judges should] be careful about fooling around with their expectations."

He listed questions a justice should pose to himself or herself before overturning a ruling -- a list that suggested that a justice should be strongly persuaded of the major error of a ruling before voting to overrule it.


Twice during the day, Judge Breyer exhibited a deep caution about using the Constitution's Ninth Amendment as a justification for the court to create new rights -- even though Judge Breyer, as a law clerk to then-Justice Arthur L. Goldberg, had prepared a draft opinion making just such a justification for recognizing a married couple's constitutional right to use birth control devices.

The Ninth Amendment says that the fact that some rights are listed in the Constitution does not deny the existence of others -- language that Justice Goldberg's opinion interpreted expansively. The Goldberg opinion later influenced the court in deciding the Roe case on abortion rights.

With emphasis, Judge Breyer stressed that the 1965 opinion was Justice Goldberg's, representing Justice Goldberg's view only. The nominee also gave senators his own narrow interpretation of the Ninth Amendment, suggesting it was merely a guide to advise the Supreme Court how to interpret the Bill of Rights.

The nominee's most enthusiastic embrace of a major Supreme Court ruling came when he was asked by Sen. Herb Kohl, a Wisconsin Democrat, to describe some of the most important decisions of the 20th century.

Judge Breyer said that it was easy to pick out the first: the school desegregation decision in 1954.

The Constitution, he said, had made a promise that "the country will be fair," and that promise had gone unfulfilled. "How shocking, to write a promise like that into the Constitution and it isn't done. And it seems to me that . . . was a decision of courage, but the courage was, 'Do what the law says.' "


Appearing to concede that racism remained a problem in the nation, Judge Breyer said that "the years of neglect" have meant that it will be "decades, decades" before the Constitution's promise of racial equality "is eventually kept, but we're trying, and the trying is absolutely correct."