Consensus Candidate for Court Spot Breyer Applauded Equally by Democrats, Republicans

Article excerpt

JUDGE STEPHEN G. Breyer's appearance before the Senate Judiciary Committee, beginning today, is expected to be a compulsory mission lacking risk or drama.

A genial, smart, prudent, pragmatic judge and a panel of supportive senators will talk for hours about such matters as regulation, privacy and the Ninth Amendment.

Just about everyone already knows how it will turn out: Unless lightning strikes, the Senate will overwhelmingly, perhaps unanimously, confirm Breyer's appointment to a lifetime job on the Supreme Court.

In sharp contrast to the Robert H. Bork controversy of 1987 and the Clarence Thomas-Anita Hill tempest of 1991, and probably because of them, the Breyer confirmation hearing is expected to generate as much TV excitement as a test pattern.

Nonetheless, the hearing on President Bill Clinton's nominee to succeed liberal Justice Harry A. Blackmun may provide insights into a man with the potential to lead the nation's most powerful court as this century melts into the next.

Breyer, who will be 56 next month, would join a generally conservative court on which, as U.S. Appeals Judge Patricia Wald observed recently, the dialogue is largely between the center (Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter and Ruth Bader Ginsburg) and the far right (Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas). With Blackmun's departure, the court's only liberal would be John Paul Stevens.

Many analysts predict Breyer will find a home in left-center field, somewhere in the vicinity of Souter and Ginsburg.

All of which means that the Breyer-for-Blackmun transition might be a rare instance of a Democratic president's nominee actually moving the Supreme Court to the right.

Breyer is the very model of a modern consensus candidate: He may be pigeonhole-proof.

A former Harvard law professor and Senate Judiciary Committee chief counsel, he is a onetime aide to liberal Sen. Edward M. Kennedy, D-Mass., and is admired by conservative Republicans Orrin G. Hatch of Utah and Strom Thurmond of South Carolina.

He was nominated to the federal appeals court in Boston by President Jimmy Carter and appointed by President Ronald Reagan. He is, as he has said, "suspicious of any overarching theory." He assiduously weighs the facts of each case and the practical effects of legal conclusions.

In general, Breyer's rulings on individual rights, though passionless, appeal to Democrats. Republicans applaud his understanding of business interests.

Unquestionably, Breyer would bring to the court expertise and experience in some of the important issues on the horizon - science, health and safety, the environment, property rights and economic regulation - as well as an ability to find the middle ground and coax others to join him.

Some economists believe Breyer knows more about their subject than any Supreme Court justice since Louis Brandeis (1916-39) and could provide a pragmatic counterweight to Scalia's scrupulously strict approach.

"I think Breyer can make a difference in moderating court opinions on government regulation of economic activity," said Steve Goldstein, associate dean of the Florida State University College of Law. "He will stand up to Scalia's push toward relying on market forces."

Yet Breyer is skeptical of the sweep of government regulation and doesn't automatically defer to the actions of federal agencies. …