JUDGE Stephen Breyer is very likely to be confirmed by the Senate soon as a justice of the Supreme Court.
But Sen. Richard Lugar (R) of Indiana remains a lone voice, so far, of dissent.
Mr. Lugar explained at a Monitor breakfast on July 26 that he will vote against Judge Breyer's confirmation because of the ``imprudent'' nature of an investment Breyer made in Lloyd's of London in 1985.
Breyer, then already a federal judge, put his name to a Lloyd's syndicate that involved signing away unlimited liability for potential losses. Because Lloyd's insures many companies for their liability for pollution in the US, those potential losses now are immense.
In a recent British book on Lloyd's syndicates, journalist Adam Raphael estimates that Lloyd's liabilities are more than twice the company's $4 billion in reserves.
Breyer has lost most of his $16,300 investment already, Lugar says, and ultimately, he could lose up to $500,000. That will not bankrupt Breyer, who reports a net household worth of about $6.5 million. But Lugar is bothered by Breyer's investment for two reasons.
One is that Breyer took the unusual step of signing away so much liability at a time when the problems of Lloyd's were beginning to be well known. ``It shows he doesn't understand business,'' Lugar says.
The other reason is that both legislation and a ``raft of court cases'' are coming down the pike that will affect the liability of companies for polluted sites, such as toxic-waste dumps. Many of them are decades old, and cleanup costs are enormous. Breyer might face a frequent problem in recusing himself from Supreme Court cases that deal with such issues, since they could affect his personal finances.
He told the Senate Judiciary Committee that he would be divested of his Lloyd's investment within three or four years. Lugar argues that the nature of Breyer's liability is lifelong, however, and an investor is ``in down to your last button.''
The Senate Judiciary Committee voted 18-0 on July 19 to recommend Breyer for confirmation. Lugar first went public with his concerns about the Lloyd's investment on July 22. Lugar says it would inapproriate to confirm someone ``who will be in harm's way'' as laws are sorted out concerning pollution liability. Breyer should have known, if he did not, when he made his investment in 1985 that the syndicate ``had tentacles into public policy.''
Lugar is a conservative Republican, but one respected in both parties for his thoughtful approach to most issues. He says he is not trying to mobilize other senators behind his position, although he is actively attempting to publicize his views. Many Republicans, he says, take the view that Breyer is the best justice - ideologically speaking - they can expect President Clinton to nominate.