Under fire, Breyer offers plan to avoid ethics problems as justice


WASHINGTON -- Showing flashes of anger over tough questioning about his investment portfolio, Supreme Court nominee Stephen G. Breyer promised the Senate Judiciary Committee yesterday that he will set up an unprecedented system to avoid ethical problems as a justice.

His promise was so unusual and so broad, in fact, that two senators on the committee later urged him to reconsider it rather than have himself bound so tightly.

Finishing his testimony before the panel, Judge Breyer appeared to be in no danger of losing support among senators. But his third day in the witness chair was his most difficult, especially in several heated exchanges with Sen. Howard M. Metzenbaum, an Ohio Democrat and the nominee's most vocal critic on the panel.

The sparring was so intense that Judge Breyer's two strongest supporters on the committee -- Sen. Edward M. Kennedy, a Massachusetts Democrat, and Sen. Orrin G. Hatch, a Utah Republican -- rushed to his defense and pointedly challenged Mr. Metzenbaum. "Let's get with it," Mr. Hatch said bitterly.

It was during that segment of the hearing that the judge spelled out an ethical checkup system that could force him out of a significant number of cases the Supreme Court will be hearing.

Although most justices and judges do not remove themselves from cases that do not directly involve companies in which they have investments, even though the outcome might affect those companies, Judge Breyer's suggested system would be considerably tighter.

Here is what he promised:

* A list of all of his investments -- for the multimillionaire jurist, that is a lengthy list -- will be posted at the court, and all parties in cases reaching the court will be invited to make strictly anonymous comments to the court clerk if they think the outcome could affect any of his investments.

* The comments will be passed on to Judge Breyer. If he is convinced that "there would really be an impact on the investment" from the decision that is to be issued, he would disqualify himself.

The judge earlier in the week had promised the committee that he would get rid of all of his investments in the insurance industry, as soon as that could be arranged, to avoid potential conflicts of interest as a justice. His promise yesterday took him well beyond that pledge, leaving his other investments as is, but potentially having to stand aside often because of them.

Mr. Metzenbaum called the judge's promise a "major step in the right direction" and stressed that he did not think Judge Breyer had broken any ethical rules, even though he might have been "imprudent."

The focus of the Ohioan's questions was the judge's ruling in an environmental hazard case that, the senator said, could have a major impact on the insurance industry and, specifically, on Judge Breyer's investment in a Lloyd's of London insurance syndicate.

Later, Sen. Paul Simon, an Illinois Democrat, cautioned Judge Breyer that he could be locked into his promise for a long time, and urged him to think it over and let the committee know by letter whether he would be "comfortable" under those restraints.

Mr. Biden, the committee's chairman, also suggested caution, telling the nominee: "I don't want you [disqualifying] yourself from every important case that comes along."

Both Mr. Biden and Mr. Hatch said that the judge had satisfied them fully in his explanation of his judicial conduct on the Lloyd's of London issue.

The judge's part in the hearing ended in early evening amid strong praise from the committee's leaders. Other witnesses will testify today, including some who oppose the nomination.

Besides his difficulties with Mr. Metzenbaum, Judge Breyer engaged in debate with Sen. William S. Cohen, a Maine Republican, over what the senator denounced as "elitist" ideas in a book by the judge on changing the government's spending priorities to protect public safety and health. The book suggested that the public, poorly informed by the press, pushes the government to spend too much to head off exaggerated safety hazards.

Judge Breyer sat silently, looking stunned, as Mr. Biden picked up the same theme and gave the nominee a brief but biting lecture about making "incredibly presumptuous and elitist" assumptions about "the American people's cultural values."

Bluntly, the senator told the nominee: "I am delighted [that] as a judge you are not going to be able to take your policy prescriptions into the court."

Asked afterward at an intermission why he had chastised the judge so sharply, Mr. Biden replied that he had always been offended "by elitist notions" and suggested that the judge's view of the people's values were the views of "a philosopher king" out of touch with reality.

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