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
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
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
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. …