Clinton Picks `New Democrat' For High Court

Boston Judge Stephen Breyer would bring centrist expertise on government regulation

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.

As counsel to the Senate Judiciary Committee, Breyer was a key architect of airline deregulation in 1978.

In a 1982 book on regulation, he argued that government often mismatches the regulation and the problem the regulation is intended to correct. Instead of setting standards and restrictions as a sweeping response to defects in the market system, such as setting emissions standards for cars, Congress ought to follow certain principles, he wrote.

Government ought to look through a ``pro-competitive lens'' and ``urge reliance on an unregulated market in the absence of a significant market defect.'' When government must intervene, it ought to look for the ``least restrictive alternative,'' beginning with incentive-based regulation such as tax incentives or tradable credits. ``Classical regulation ought to be looked upon as a weapon of last resort.''

Such views are popular with ``New Democrats,'' meaning moderate Democrats who want to ``reinvent government.'' They are greeted with skepticism by those, like Mr. Nader, who are highly distrustful of corporate economic power.

Breyer was also a member of the commission that created the current federal criminal sentencing guidelines.

Breyer is well-liked and has left of trail of supporters among those he has worked with across partisan and ideological lines. He once told lawyers at a judicial conference: ``I try to ask questions politely. If I think your argument is hopeless, I will try to use a sad tone of voice, not a critical one.''

The White House hopes that Breyer will be a consensus-builder on the Supreme Court. That was one quality, along with wide experience and stature in the field, that put him among the finalists for the post, according to deputy White House counsel Joel Klein.

Breyer arrived in Washington yesterday and stayed in the White House last night. He will have a ceremonial nomination in the Rose Garden today with his family.

But Friday's low-key White House announcement of Breyer's nomination had an air of resignation to it. Clinton delayed his decision for days while he weighed the benefit of appointing a seasoned politician - in this case Interior Secretary Bruce Babbitt - versus the political problems it would create. The next choice, close Clinton friend and widely respected federal Judge Richard Arnold, had health problems that the White House determined risked cutting short his service on the court.

Breyer was without problems.

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