The Nation : Concentrating on Process, We Miss Breyer’s Strengths

What makes Judge Stephen G. Breyer such a “safe” choice for the U.S. Supreme Court is also what makes him such an out standing choice. Here is a man who has won the respect of an Edward M. Kennedy (D-Mass.) and an Orrin G. Hatch (R-Utah), a Joseph R. Biden Jr. (D-Del.) and a Strom Thurmond (R-S.C.). He is precisely the sort of politician who can have a major impact on the court.

The coverage of Breyer’s nomination has focused more on the selection process than on the judge’s qualifications. Many in the press seem far more interested in what went on inside the White House during the last week or two than what it is likely to go on inside the Supreme Court for the next few decades. But the true measure of a process is its result, and in this case, the result is first-rate.

Breyer is, even his critics concede, extraordinarily smart. This is passed over quite quickly in most descriptions of him--as if it doesn’t matter much as a qualification for being on the court. But unlike many smart people, Breyer does not have to constantly prove to everyone else in the room that he is smarter than they are. He is secure enough to care more about getting things done. This quality may be even rarer than his intelligence--and far more prized.

I know Steve Breyer well. He was my colleague at Harvard, and my boss in the Senate. In the two years I worked for him on the Senate Judiciary Committee, I never saw him waver in his commitment to equal rights or civil rights. I never saw him compromise on a matter of principle that he or Kennedy, our boss, cared deeply about. He did not win the respect of the Republicans on the committee by kowtowing to them on issues, or by abandoning his values. He won their respect by being honest, acting in good faith and searching hard for common ground. He won their loyalty by listening, and dealing fairly. Those political skills will serve him well on the Supreme Court.

I’m not sure that Breyer could ever get himself elected to the state Legislature, much less to Congress. He’s not a comfortable glad-hander; he doesn’t have the kind of instant likability that sells in a 30-second ad. But he is a superb politician in ways that count on the Supreme Court.

The challenge for any moderate or liberal on the court today is to find five votes. Without five votes, a brilliant opinion is a dissent. Breyer is no fan of dissents. On the First Circuit Court of Appeals, where he serves as chief judge, dissents are rare.

But finding five votes on the U.S. Supreme Court on ideologically sensitive questions is no easy task. At least for the foreseeable future, it means convincing a David H. Souter and a Sandra Day O’Connor or an Anthony M. Kennedy to join the more moderate Ruth Bader Ginsburg and John Paul Stevens and Breyer. You have to be smart enough to see the common ground, honest enough to be trusted, determined enough to keep trying, strong enough to know where to yield, secure enough to share credit.

These are, of course, precisely the same skills it takes to forge a consensus between Kennedy and Hatch, and Biden and Thurmond. Breyer, perhaps more than any other appellate judge today, knows how to do that job. He’s done it.

Twenty years ago, when Harry A. Blackmun was appointed to the court, he was the safe choice. After bruising battles over the nominations of Judges Clement F. Haynsworth and G. Harrold Carswell, President Richard M. Nixon reportedly asked his aides to find him someone who could be easily confirmed. They found Blackmun.

No one predicted that the former counsel to the Mayo Clinic would express his interest in health law by authoring Roe vs. Wade. When he was appointed to the court, Blackmun was known disparagingly as one of the “Minnesota twins”--the other being the conservative Chief Justice Warren Burger. In his early years, Blackmun voted with the chief justice 90% of the time; in his later days, no one would accuse Blackmun of being anyone’s twin, least of all the conservative chief justice’s.

The court has shifted over the years--but so has Blackmun. In 1976, Blackmun was part of the majority that allowed executions to begin again in the United States; this year, he declared he would no longer support the death penalty in any case. Blackmun was the deciding vote in holding flag burning to be protected speech, in upholding affirmative action, banning prayer at high-school graduations and barring Nativity scenes from courthouse steps.

Blackmun’s unpredictability was a strength. The best justices have grown and changed and developed on the job. It is the ones who don’t change at all, who don’t grow, that should worry us. Fifteen years ago, some women’s organizations opposed Stevens’ nomination to the high court because of a decision he had made as an appellate judge in a discrimination case. They disagreed with his decision; and based on that, they were afraid that he would not be a friend to women on the court. They were wrong. No one in the last decade has been more sensitive to issues of sex discrimination. Predictions are a dangerous game when it comes to the best justices.

In his remarks on Monday in the Rose Garden, Breyer went out of his way to reassure those who worry that he is too far removed from real people who are affected by the court’s decisions. “The Constitution and the law,” he said, “must be more than mere words. They must work as a practical reality. And I will certainly try to make the law work for people, because that is its defining purpose in a government of the people.”

The question that should be asked about any nominee is whether he or she has the intelligence, the values, the wisdom and the experience to serve as a justice on a court that is, by definition, infallible. Breyer does. And the members of the Senate who worked with him know that. That is why his nomination is drawing bipartisan praise.

If he is indeed confirmed easily, as most expect, it will be because so many people judging him know firsthand how well qualified he is. In these days of sharp partisan divisions on almost every issue, Breyer’s ability to win truly enthusiastic support across the ideological spectrum--from Hatch to Kennedy--makes his nomination an occasion for hopefulness about the future of the Supreme Court.*