Though supportive of Judge Stephen Breyer for a seat on the Supreme Court, and confident he would sail smoothly to confirmation, we said in this space on the eve of his Senate Judiciary Committee hearings last month that committee members should be "thorough and unsentimental" in questioning him. There were a few hard questions, but not many, considering the fact that inspection of his investments in Lloyd's of London insurance ventures showed he had exposed himself to unlimited liability, involving issues he subsequently ruled on as a court of appeals judge and might be expected to again as a justice.
Attempts to explore more closely this evidence of poor judgment were cut off by his chief defenders on the committee, especially Sen. Edward Kennedy. (We can imagine what Senator Kennedy would have said if Judge Robert Bork had shown similar injudicious judgment.) No member of the committee made a real issue of the investments, some of which were made after Mr. Breyer became a judge. Perhaps this was because Judiciary members were too sentimental. Judge Breyer used to be a member of the Judiciary Committee staff.
We would not say Judge Breyer should not be confirmed. He has many outstanding attributes. But we compliment Indiana's Republican Sen. Richard Lugar for his decision to oppose the nomination. He said, "I have substantial doubts about his prudence and good judgment." He explained, "Reluctantly, I have concluded that he imprudently placed all that he owns at unlimited risk. . . . He displayed judgment costly not only to him but likewise to my confidence in his future judgment during lifetime tenure. . . . His effectiveness as a member of the court could be undermined if his investments force him to recuse himself from cases or his financial troubles come to dominate his attention."
Now, maybe not. There is no way of knowing in advance. Since Judge Breyer's confirmation is assured, we have to hope Senator Lugar is wrong. How much better it would have been for all concerned if the Judiciary Committee had looked into this situation more thoroughly. Senator Lugar's "nay" will be a vote against the Judiciary Committee and the process as much as it is a vote against Judge Breyer, and properly so.