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Stephen Breyer to Retire, Setting Up Battle for Supreme Court Seat

This article by Gwen Ifill was originally published on May 14, 1994, with the headline “President Chooses Breyer, an Appeals Court Judge in Boston, for Blackmun’s Court Seat.”

After days of apparent indecision over his second Supreme Court appointment, President Clinton turned today to a man he had passed over once before, choosing Judge Stephen G. Breyer, the chief judge of the United States Court of Appeals for the First Circuit, in Boston, to replace Justice Harry A. Blackmun.

Judge Breyer, who is 55 years old, has a reputation as a consensus builder and a pragmatist whose court rarely produces a dissenting opinion. He already has bipartisan support in the Senate, where he worked as an aide during the 1970’s and helped build coalitions across party lines to deregulate the airlines.

“Without dispute, he is one of the outstanding jurists of our age,” Mr. Clinton said. “He has a clear grasp of the law, a boundless respect for the constitutional and legal rights of the American people, a searching and restless intellect, and a remarkable ability to explain complex subjects in understandable terms.”

After Mr. Clinton’s announcement, Judge Breyer told reporters at the Federal Courthouse in Boston that he would try to interpret the law to benefit the lives and rights of ordinary people.

“I admire the Supreme Court enormously, because in this country people believe in law, they believe in individual rights, they believe in the Constitution, and they believe that all that matters to their lives — and they’re right,” he said.

Judge Breyer learned of his selection too late to join the president at the White House today, and officials said a formal Rose Garden ceremony for the new nominee would be held on Monday.

Mr. Clinton had repeatedly delayed the announcement of his nominee this week as he was forced until almost the last minute to weigh the political combat he might face in the Senate if he had nominated his first choice, Interior Secretary Bruce Babbitt.

Just before Mr. Clinton revealed his choice, Mr. Babbitt called his staff together and told them that he had met with the president for “half the night,” starting at midnight Wednesday, to talk about the Court, the country and the Interior Department, an aide to Mr. Babbitt said. He said he ultimately advised Mr. Clinton that if he were president, he would leave Bruce Babbitt at the Interior Department.

Administration officials said political considerations were not the primary factor in the selection. But they acknowledged that with Judge Breyer, Mr. Clinton will have a nominee who is virtually guaranteed to win easy approval in the Senate, where he is still remembered for his work on the Senate Judiciary Committee.

Lloyd N. Cutler, the White House counsel, said that of Mr. Clinton’s three finalists — Judge Breyer, Mr. Babbitt and Judge Richard S. Arnold of Arkansas — that Judge Breyer “was the one with the fewest problems.”

When he was nominated by President Jimmy Carter for the appeals court post in 1980, Judge Breyer was vigorously supported by both Senator Edward M. Kennedy, Democrat of Massachusetts, and Senator Strom Thurmond, Republican of South Carolina.

The judge’s pivotal role on a commission that drafted sentencing guidelines for Federal crimes has proven more contentious. The guidelines, which were imposed in 1987 to reduce disparities in sentencing, are widely resented, and sometimes flouted, by the Federal judges who are supposed to follow them.

Nonetheless, Judge Breyer has already been endorsed for the High Court by Senator Orrin G. Hatch, the Utah Republican who led the opposition to Mr. Babbitt. And before Mr. Clinton had even completed his announcement today, Senator Bob Dole of Kansas, the Republican leader, predicted “smooth sailing” for the confirmation.

“In Judge Breyer, President Clinton has selected a top-notch intellect and a person of integrity,” Mr. Dole said. Senator Joseph R. Biden Jr., the Delaware Democrat who heads the Senate Judiciary Committee, praised Mr. Breyer’s “intellect and dedication.”

By contrast, several senators had vowed to fight the nomination of Mr. Babbitt.

Mr. Breyer’s stock began to rise late this week after Republicans began to complain about Mr. Babbitt Senators Hatch and Alan K. Simpson of Wyoming, both Republicans, had announced they would vote against Mr. Babbitt because of his stance on environmental issues and their concern that he might try to legislate liberal policies from the bench. Both have spoken highly of Judge Breyer and of Judge Arnold.

The White House had longed for an uncluttered confirmation process, and Judge Breyer’s popularity in the Senate promised that.

President Clinton’s first choice was Interior Secretary Bruce Babbitt, who would have faced opposition in the Senate.Credit…David Scull/The New York Times

Slightly Defensive

Appearing before reporters on the South Lawn, Mr. Clinton offered an unusual and slightly defensive discourse on his decision, seeking to dispel any notion that, as he has done on several high-profile appointments, he had made an initial choice, allowed the nominee’s name to be known publicly and then changed his mind.

Mr. Clinton acknowledged that he had taken longer than expected to select the court’s 108th justice, but he said, “It is a duty best exercised wisely, and not in haste.”

Mr. Clinton said he believed that either Mr. Babbitt Judge Arnold, who serves on the United States Court of Appeals for the Eighth Circuit, would “have been handily confirmed.”

But he said he “couldn’t bear” to lose Mr. Babbitt from his Cabinet and that he did not select Judge Arnold, a close friend, because he is undergoing treatment for lymphoma, a form of cancer. He also said that that he received more than 100 letters from other Federal judges who supported Judge Arnold’s nomination.

Mr. Clinton had considered and passed over Mr. Breyer last year, when he filled the slot vacated by Justice Byron R. White with Ruth Bader Ginsburg. Aides said at the time that Judge Breyer had failed to impress Mr. Clinton in their meeting and that they were concerned when he revealed that he had failed to pay Social Security taxes for a household worker.

But today, Mr. Clinton had only praise for Judge Breyer, remarking that any candidate who could win support from both Senator Kennedy and Senator Hatch was worth nominating. He sought to portray last year’s chilly meeting with Judge Breyer as a warm session that helped him make his decision this time.

Credit…The New York Times

‘Political Sensibility’

In choosing Judge Breyer, who is a graduate of Stanford University, Oxford University and Harvard Law School, over Mr. Babbitt, Mr. Clinton set aside his desire to appoint a veteran politician to the court.

He said today, however, that he believed Judge Breyer would bring a political sensibility to the court “because of his reputation as a consensus builder on a court where most of the appointees were made by Republican presidents.”

“You know, this country got started by people who wanted a good letting alone from government,” Mr. Clinton said. “I think he understands that.”

Mr. Clinton also decided against expanding diversity on the bench; like Justice Ginsberg, Judge Breyer is Jewish and from the Northeast. Among the possible nominees he bypassed were Judge Jose A. Cabranes, chief of the Federal District Court in Connecticut, who is Hispanic, and Judge Amalya L. Kearse, who sits on United States Court of Appeals for the Second Circuit, in New York, who is black. Both were reported to be among the five finalists.

Mr. Breyer with Mr. Clinton at the White House in 1994.Credit…Doug Mills/Associated Press

Six Weeks of Pondering

Mr. Clinton met for six weeks with advisers about the nomination, whittling and expanding a list of choices that at one point exceeded a dozen names. During the last few days, aides said that they spent most of their time trying to determine the state of Judge Arnold’s health.

Mr. Clinton had determined that Mr. Babbitt could not be spared from the Interior Department in part because it would be difficult to replace him, aides said.

Mr. Clinton had originally intended to nominate Senator George J. Mitchell of Maine, the retiring Democratic leader, but Mr. Mitchell took himself out of the running, saying he wanted to devote his time this summer to enacting the president’s health care plan. Immediately after Mr. Mitchell’s withdrawal, interest groups began stepping up the pressure.

The Congressional Hispanic Caucus, which had pressed for the appointment of Judge Cabranes, today expressed “strong disappointment” at Mr. Clinton’s decision.

Wilfredo Caraballo, the president of the Hispanic National Bar Association, called the decision to bypass Judge Cabranes “a slap in the face to all Hispanics.”

But Judge Cabranes, reached at his chambers in New Haven, praised Judge Breyer as a “treasure of the Federal judiciary,” and said the country would be well served by the appointment.

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