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