Clinton Picks `New Democrat' for High Court Boston Judge Stephen Breyer Would Bring Centrist Expertise on Government Regulation

By Marshall Ingwerson, writer of The Christian Science Monitor | The Christian Science Monitor, May 16, 1994 | Go to article overview

Clinton Picks `New Democrat' for High Court Boston Judge Stephen Breyer Would Bring Centrist Expertise on Government Regulation


Marshall Ingwerson, writer of The Christian Science Monitor, The Christian Science Monitor


THREE years ago, Judge Stephen Breyer debated Supreme Court Justice Antonin Scalia on how to interpret statutes before a packed hall at the Justice Department.

Judge Breyer has been the "leading antagonist" to Justice Scalia on this point of law, say White House lawyers who helped President Clinton select Breyer for the Supreme Court.

They clearly hope that the mild-mannered but intelligent Breyer becomes a counterforce on the high court to Scalia, the most scorchingly powerful personality on the court and its most conservative member.

But Breyer - nominated Friday to replace the court's most liberal justice, Harry Blackmun - is no traditional liberal either.

His writings anticipated by many years what Clinton came to call the "New Democrat" approach to government - that is, respecting competitive markets and incentives while using centralized regulation of the economy only as a last resort.

Not surprisingly, the strongest criticism of Breyer's nomination has come not from conservatives but from liberals such as consumer-advocate Ralph Nader.

On the red-flag social issues that face the court, such as abortion rights, Breyer has left little record. But former colleagues say he is fairly liberal on these points. This will help smooth his Senate confirmation. So will his experience in the late 1970s as general counsel to the Senate Judiciary Committee, which holds the confirmation hearings for Supreme Court nominees.

Leading Republicans on the committee, such as Orrin Hatch of Utah and Arlen Specter of Pennsylvania, have already indicated publicly that they support Breyer's nomination.

Breyer, currently the chief judge on the US First Circuit Court of Appeals in Boston, has been a leading legal scholar on government regulation and economics. His name is often included in the short list of federal judges who have pioneered the use of economic analysis in judicial decisions, along with people like federal Judge Richard Posner and former Supreme Court nominee Robert Bork.

But unlike those scholars, Breyer is not a conservative, free-market, law-and-economics judge who brings cost-benefit calculations to a wide range of decisions. Breyer wrote a few years ago that he has "seen few cases, if any, in the decision of which economics played a major role."

Even critics of Breyer's position credit him with bringing "an unusually sophisticated understanding of economics to the bench," Wesley Magat, a Duke University business professor, wrote in 1987.

Breyer's views on regulation laid the groundwork for some of the reforms that followed years later. For example, he advocated marketable pollution credits to replace some of the standard regulations in the Clean Air Act years before the Bush administration enacted such credits to control emissions that cause acid rain. …

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