NOMINEE BREYER: INTELLECT YES, PASSION NO Series: STEPHEN G. BREYER SECOND OF TWO ARTICLES

By William H. Freivogel Of the Post-Dispatch | St Louis Post-Dispatch (MO), May 31, 1994 | Go to article overview

NOMINEE BREYER: INTELLECT YES, PASSION NO Series: STEPHEN G. BREYER SECOND OF TWO ARTICLES


William H. Freivogel Of the Post-Dispatch, St Louis Post-Dispatch (MO)


STEPHEN G. BREYER doesn't have the passion of the man he would replace on the U.S. Supreme Court, colleagues and critics agree.

"He is not going to be a Harry Blackmun or a William Brennan and certainly not a Thurgood Marshall who brought life experiences to the court," says Richard J. Lazarus, a Washington University law professor and former Breyer student.

"To paraphrase a colleague, Breyer would be sort of embarrassed to utter the words social justice. This doesn't mean he's mean-spirited. It is how he views his role as a judge."

"Breyer is an academic intellectual. He is very interested in legal issues and debate, and his passion lies within that sphere. Statutory construction, the role of legal history, the role of administrative agencies - these are things he feels strongly about, but he is not someone who has an independent vision of society or law."

Breyer would never start an opinion with a description of an execution chamber, as Blackmun did in his solitary dissent to the death penalty earlier this year, Lazarus said. Nor would Breyer begin with the words, "Poor Joshua," as Blackmun did when the court said it couldn't do anything about the failure of state welfare officials to rescue a child from abuse.

Lazarus is expressing a widely held view. But Charles Fried, former solicitor general and a Harvard law professor, disagrees.

"That criticism makes me retch," says Fried. "He has the passion to do the right thing, and to his mind doing the right thing means coming to each case with an open mind. This passion of Blackmun's is rhetorical passion and at some points totally inappropriate."

No one would have predicted Blackmun's passion when he was elevated to the Supreme Court as part of Richard M. Nixon's effort to install law-and-order justices.

Nor would many at Harvard Law School in the 1970s have predicted that Breyer would get the nomination to the Supreme Court that President Bill Clinton has given him.

"There were 60 or 70 professors at Harvard Law then," says one former colleague. "If you had a vote on who would make the court, Stephen would not have gotten more than a vote or two." Path To The Court

Breyer has a classic liberal pedigree from his days as a law clerk to liberal Justice Arthur Goldberg and then chief counsel for Sen. Edward M. Kennedy, D-Mass., on the Senate Judiciary Committee.

But like other liberals moving up through the judiciary, Breyer has not been predictably liberal.

"It has been typical of liberal judges to vote for women's issues and then to establish conservative credentials by voting against the rights of criminal suspects," says Alan Dershowitz, a Harvard law professor. Dershowitz says Breyer, his friend of 32 years, fits that pattern.

A year ago, when President Bill Clinton considered Breyer for the last Supreme Court vacancy, Breyer was in jeopardy of losing support of women's leaders when he turned up with a so-called Zoe Baird problem: he had failed to pay Social Security for a domestic worker.

Harriett Woods, the St. Louisan who heads the Women's Political Caucus, went on television to say this shouldn't detract from Breyer. When she got home, Breyer telephoned to thank her. Tough On Crime

Breyer was a chief architect and defender of the guidelines drawn up by the Federal Sentencing Commission to limit the discretion of judges in sentencing. The idea was to achieve greater equality and truth in sentencing. The result was a grid of 258 boxes giving the range of sentences for each crime.

During Breyer's tenure from 1985 to 1989, the Sentencing Commission was torn by infighting and criticized for hasty decisions. Critics said Breyer violated the legal requirement that all members serve full time. He participated in more than 240 federal appeals court cases during his tenure and taught part time at Harvard Law School.

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