Stephen Breyer, nominated Friday by President Clinton to fill the latest Supreme Court vacancy, personifies the cerebral and almost studied gentility of a new urban elite.
He lives in a $600,000 two-story colonial in sophisticated, though increasingly trendy, Cambridge, Mass., the home of Harvard University. He swims, often jogs several miles to work, hikes in woods near the 160 acres he owns in New Hampshire and reads French literature in French.
Breyer, 55, seems almost faultlessly considerate and humane, with a quirky but not patronizing sense of humor. “Oh, that’s one of my umbrella jokes,” he will say when an attempt at humor goes right over your head.
Breyer’s legal mind, if not his attire, is elegant. His personal manner can seem ascetic, with colleagues on the federal appeals court in Boston swearing that he may wear the same suit for days, possibly weeks.
Northwestern University law professor Paul Robinson, who served on the Federal Sentencing Commission with Breyer for almost three years, recalls the judge arriving at sessions in Washington carrying a travel bag with his clothes hanging out.
Breyer represents an American aristocracy of merit, not heredity, the sort of person whom the Founding Fathers, including Thomas Jefferson and Alexander Hamilton, saw as the republic’s natural leaders.
The son of a San Francisco attorney, he went to the right schools-Stanford, Oxford and Harvard Law-and then worked for the right people-clerking for the late Supreme Court Justice and Chicago native Arthur Goldberg, working under Watergate special prosecutor and fabled Harvard professor Archibald Cox, and serving as a top aide to Sen. Edward Kennedy (D-Mass.) on the Judiciary Committee, which processes all judicial nominations.
He and his wife, Joanna, the well-born, Harvard-and-Oxford-educated daughter of Lord John Blakenham, a former British Conservative Party leader, have three grown daughters and a combined net worth estimated at $3 million.
Joanna Breyer once worked in Washington as a secretary to the late journalist Henry Brandon of the Sunday Times of London, whose family described her Saturday as “highly intelligent, vivacious, well-read and a wonderful mother.” She’s a child psychologist who helps children suffering from leukemia at Boston’s Dana-Farber Cancer Institute, where her husband is a trustee and volunteer.
Breyer is not a backslapper or man who otherwise exhibits much outward passion. Yet federal Judge Bruce Selya of Providence, R.I., an appeals court colleague, says, “The most unusual thing about him is that he makes everyone feel at ease despite his absolutely stunning intellect.”
According to Selya, Breyer appears as comfortable with the maintenance people in the new federal courthouse (whose design he meticulously oversaw) as he is with fellow judges and lawyers in the U.S. attorney’s office. He also displays a knack in his opinions for framing legal issues in everyday language so the public can understand. It’s why he doesn’t use footnotes in his opinions.
Selya also noted that Breyer has signed up to take a Spanish course that is offered at the courthouse because of the growing number of Spanish-speaking litigants. Further, his appeals court’s jurisdiction includes Puerto Rico, where he travels to hear cases occasionally and, said Selya, likes “good, native restaurants.”
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Another appeals court colleague, Judge Levin Campbell, said Saturday that Breyer is “easy to work with but no pushover . . . a high-powered person who doesn’t make you feel nervous.” Former clerks also noted the depth of his intellect and strong opinions, but fairness and sense of control.
Gary Katzman, who clerked for Breyer in 1980-81, recalled Saturday that he never saw his boss lose his temper:
“He’s very intense in terms of his thinking. You can tell when you see him walking through the chambers when he’s involved in thinking about a decision.”
Breyer is more the legal scholar than tough-minded litigator. He did not make his mark as a courtroom practitioner but as an analyst and theoretician.
Nevertheless, he is not without passion, as Katzman recalled Saturday. He cited one Harvard Law School lecture several years ago in which Breyer addressed the seemingly dry topic of “Regulation and Risk” but spoke theatrically and held his audience’s attention for more than two hours.
Breyer’s address reflected his longtime writings on the overlay of law and economics-a field of legal analysis associated most with the University of Chicago.
“Steve is a man who is able to bridge the gap between restrained University of Chicago economics and the administrative state,” said Richard Epstein, a U. of C. law professor.
“He has a strong economic sophistication about classical theories of regulation but he is not a firebrand. He’s comfortable with big government in some sense without being a slave to it.”
Epstein described Breyer as being among the nation’s “judicial elite.”
Nevertheless, in nominating Breyer to fill the vacancy created by the retirement of Harry Blackmun, Clinton chose vanilla.
His impressive intellect aside, Breyer was also the safe choice among the three finalists Clinton had considered. He runs counter to Clinton’s previously stated desire to find someone from the political arena, such as Senate Majority Leader George Mitchell (D-Maine).
But Mitchell withdrew his name from consideration, leaving the president with a short list of finalists: federal appeals Judge Richard Arnold of Arkansas, Interior Secretary Bruce Babbitt and Breyer.
Instead, much like President George Bush’s selection of New Hampshire state Judge David Souter, Clinton went with a lower-profile nominee. He thus appears to have avoided a fight over a judicial nomination as he is pushing a broad-based domestic agenda, notably his proposal to overhaul the health-care system.
Clinton reportedly faced personal torment over the decision, particularly the rejection of his longtime friend, Arnold, a Harvard Law School graduate with a distinguished record as a federal judge.
Clinton passed over Arnold, who had broad support, and cited health ambiguities raised by the judge’s ongoing treatment for lymphoma. But Arnold’s cancer condition was long known, and only days earlier, word that Arnold was the frontrunner raised the prospect of charges of Arkansas cronyism.
As for Babbitt, also a leading candidate for the court’s previous vacancy last year, Clinton apparently shied from the former Arizona governor because of Republican qualms over his environmental record.
Breyer might not have Babbitt’s star power or Arnold’s personal cachet with the president. Yet, it is well to remember that the low-key Souter, initially deemed an uninspired choice by some, now is considered one of the court’s more effective members.
He is known to favor a woman’s right to choose abortion, ruled against the Bush administration’s ban on abortion counseling at federally funded clinics and has expressed strong support for the right of free speech.
The soon-to-retire Blackmun occupies what was long regarded as the court’s Jewish seat-Breyer is Jewish-once held by Louis Brandeis, Felix Frankfurter, Goldberg and Abe Fortas. There has been no suggestion that Clinton’s considerations were in any way based on that history.