Breyer Would Join Court's Swing Center

AFTER sailing through his Senate hearing last week with only minor buffeting, Stephen Breyer appears headed to swift confirmation for a seat on the United States Supreme Court. The Senate Judiciary Committee is likely to approve Judge Breyer's nomination as early as tomorrow, and a favorable vote by the entire Senate could follow within a week.

President Clinton nominated Breyer, currently chief judge on the US Court of Appeals for the First Circuit in Boston, to succeed retiring Justice Harry Blackmun.

Breyer would join a court that is in transition, many Supreme Court watchers say. Although Presidents Reagan and Bush appointed five of the current members, the court has never hewed strictly to a conservative line. For instance, the majority has refused to revoke the right to abortion or to substantially lower the ``wall of separation'' between church and state.

During the term that ended last month, the court's most conservative wing - comprising Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas - sometimes was the losing faction in 6-to-3 votes.

At the same time, President Clinton's appointments of Ruth Bader Ginsburg last year, and now Judge Breyer, have not sufficed to give the court a consistently moderate-to-liberal cast, either.

At the center of the court is a group of justices - Sandra Day O'Connor, Anthony Kennedy, David Souter, and sometimes Ms. Ginsburg - who lean either way, though not as a bloc, depending on the issue. (Justice Blackmun and Justice John Paul Stevens have formed the court's liberal wing in recent years.)

Breyer will fit in comfortably with this centrist group, observers say. All of them are pragmatists who decide issues on a case-by-case basis and are open to persuasion by colleagues' arguments, according to scholars.

As to Breyer's influence on specific issues, Mark Tushnet, a constitutional-law scholar at Georgetown University Law Center in Washington, notes that each new justice goes through ``a shakedown period, so it will be a couple of years before Breyer's impact on the Supreme Court becomes clear.''

Looking ahead, though, Professor Tushnet says, ``There's a good chance Breyer will end up as a solid liberal on social issues.'' For instance, while Breyer testified that he accepts that capital punishment is constitutional (in contrast to the position Justice Blackmun recently adopted), ``he probably will be highly skeptical about how the death penalty is administered in many instances,'' Tushnet says.

Also, Tushnet says, in his testimony Breyer ``was surprisingly straightforward'' in indicating that ``he will support a fairly strict separation of church and state.''

``Breyer will be liberal on issues of individual freedom'' such as civil rights, predicts Prof. Erwin Chemerinsky of the University of Southern California Law Center in Los Angeles. ``But he may be more conservative than Blackmun was on criminal-law matters.''

Some experts anticipate that Breyer, whose intelligence is widely acknowledged, will enter into intellectual jousts with Justice Scalia, the most powerful theorist on the court's right wing. Such clashes are most likely to occur over the issue of how courts interpret statutes, especially if they are vague or ambiguous.

While the issue comes up in many contexts, it arises prominently in administrative law, where a frequent question is how much regulatory power has been granted to federal agencies under their authorizing statutes. Both men formerly taught administrative law at leading law schools.

According to Robert Gordon of Stanford Law School in Palo Alto, Calif., Scalia holds that courts should not, in effect, rewrite statutes in order to give them meaning, since judges are not policymakers. ``Scalia is a strict textualist. He thinks statutes should be interpreted according to the plain meaning of the words Congress used, and he contends that judges should not look to legislative history or other outside sources to infer what Congress intended.''

By contrast, Professor Gordon says, Breyer contends that ``statutory interpretation should be purposive; judges should imagine what the legislature's purpose was in enacting a statute and interpret it so as to effect that purpose. In determining a statute's purpose and the meaning of its language, Breyer is an intellectual pluralist, he's very eclectic in looking at sources.''

``Because of his strong views, Scalia has tended to get his way on administrative-law issues,'' Gordon says. ``But with Breyer on the court, that could change.''

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