[Congressional Record Volume 140, Number 95 (Wednesday, July 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                       NOMINATION OF JUDGE BREYER

  Mr. SPECTER. Madam President, the nomination of Stephen Breyer will 
come to the floor either later this week or early next week. I wanted 
to make a few comments after the vote in the Judiciary Committee, which 
unanimously, 18 to 0, forwarded Judge Breyer's nomination to the full 
Senate.
  I believe there had not been much doubt about Judge Breyer's resume 
and his qualifications in terms of educational background, professional 
experience, service as a judge, and his intellect generally. During the 
course of last week's hearings, I think we got significant insight into 
Judge Breyer's views to be able to confirm him with confidence.
  Regrettably, most of the nominees who come before the Judiciary 
Committee answer only as many questions as they have to. That is a 
circumstance caused by the premature agreement or premature statements 
by so many Senators indicating that the nominee will receive their 
approval. When that happens, it is understandable that the nominees are 
not going to take any chances and so many of the nominees have said 
very, very little in the confirmation process. Justice Scalia, for 
example, would not even answer questions about the acceptability of 
Marbury versus Madison, the very pillar of the constitutional 
jurisdiction of the Supreme Court of the United States.
  But in Judge Breyer we have had some significant indications as to 
where he stands.
  The death penalty, I would submit, Madam President, is a very 
important tool in the arsenal of law enforcement. While I understand 
the conscientious scruples of many people who oppose the death penalty, 
more than 70 percent of the American people favor it. When votes are 
taken in this body, more than 70 Senators stand up and affirm it, and 
some 37 States have reenacted the death penalty after it had been 
stricken by the Supreme Court of the United States on procedural 
grounds.
  Judge Breyer was unequivocal in saying that he disagreed with a 
number of other former Justices that the cruel and unusual punishment 
clause of the eighth amendment did not bar the death penalty in all 
cases. Judge Breyer left open the question, as I think it is necessary 
to do, to evaluate the facts of any case. But, unlike Justice Brennan, 
Justice Marshall, Justice Blackmun, and the indication from Justice 
Powell more recently after he left the bench, where those Justices felt 
the death penalty was ruled out by the Constitution, Judge Breyer said 
there was a viable place for the death penalty and that its 
constitutionality was settled.
  He also stated that he regarded as settled law that the imposition of 
the death penalty would not be determined by what happened in other 
cases for people in a given racial category, where the issue has been 
raised, that because of what happened in some 2,000 other cases in 
Georgia or nationally that the death penalty ought to be upset in a 
specific case where the facts of the case warranted the imposition of 
the death penalty, on what is the essence of American jurisprudence and 
that is individualized justice--what that person did and what the 
background of that person is.

  I thought Judge Breyer was also forthcoming in being willing to 
identify the Korean conflict as a war. That is something Justice Souter 
would not do. At a time when there is a continuing controversy between 
the Congress' sole authority to declare war under the Constitution and 
the President's constitutional authority as Commander in Chief, it is 
refreshing to find a nominee who will say, ``Yes, the obvious is 
obvious. Korea was a war.''
  How we present that issue to the Supreme Court to resolve the 
conflict is yet to be determined, but at least Judge Breyer did step 
forward on that issue.
  On the critical question of taking away the jurisdiction of the 
Supreme Court to hear constitutional issues, Judge Breyer was 
unequivocal that the Congress lacked that authority. Justice Rehnquist 
conceded the Congress could not take away the Court's authority on 
first amendment issues, but would not answer on the critical questions 
of the fourth, fifth, and sixth amendment.
  On the issue of Judge Breyer's ethics, a matter which has been widely 
noted in the press, I have no doubt about his solid ethical propriety. 
I do not think that a man of Judge Breyer's caliber is on the bench for 
the monetary benefits. Had he chosen another profession, he doubtless 
would make much more than a Federal judge.
  The issue which arose over his holdings as an investor in Lloyd's of 
London syndicates, I think, ought to be reconsidered by the Congress by 
reviewing the statutory provision providing for disqualification in 
cases in which there is some indirect benefit to a judge or Justice. 
Where you have Lloyd's insuring as many items as they do, it is frankly 
hard to determine whether there could be any benefit. If you have a 
Federal judge handing down a decision, as Judge Breyer did, on matters 
involving Superfund with enormous sums in issue which could affect 
Lloyd's of London and Judge Breyer's investments, I think the better 
course is simply to avoid it and not to have that kind of investment. 
That is something which I think the Congress should revisit.
  Finally, just a comment or two about the pool of candidates who are 
considered by the President for the Supreme Court. It seems that every 
year we find the same people talked about for nomination: Steve Breyer, 
Bruce Babbitt, Richard Arnold. It is like the line out of 
``Casablanca,'' ``Round up the usual suspects.''
  I am hopeful that the Senate will take some activity on the advice 
aspect of the advice and consent clause. We do consent by passing on 
the qualifications of the nominee. But I think the Senate could do much 
more on advice. I think we ought to create a pool of potential nominees 
by seeking input from the bar associations of the 50 States, the 
universities, and the courts to find others who might be well qualified 
for this position.
  I see my time has expired.
  I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. Under the prior unanimous-consent 
agreement the Senator from Illinois is recognized for 5 minutes.

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