[Congressional Record Volume 140, Number 100 (Wednesday, July 27, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 27, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                          JUDGE STEPHEN BREYER

  Mr. DOLE. Mr. President, I want to take a few moments to respond to 
an editorial that appeared in yesterday's New York Times. The 
editorial, entitled ``A Cloud on the Breyer Nomination,'' suggests that 
Judge Breyer should have recused himself from certain environmental 
cases because of his investment in a Lloyd's of London insurance 
syndicate. The editorial unfairly paints a picture of someone whose 
personal ethics are open to question.
  Judge Breyer has denied any conflict of interest, testifying under 
oath that he never sat on any case in which he had reason to believe 
that Lloyd's was an interested party.
  During his tenure on the First Circuit Court of Appeals, Judge Breyer 
also developed an elaborate screening system to prevent conflicts from 
occurring:
  Each year, I am told, he provided the first circuit clerk with a list 
of his personal investments, including the Lloyd's of London 
investment. Judge Breyer typically requested that he not be assigned to 
any case involving any company in which he had an investment. In 
addition, Judge Breyer personally reviewed cases for potential 
conflicts and disclosed his Lloyd's investment on his annual financial 
disclosure report. Since these reports are available to the public, it 
gave litigants the opportunity to seek the recusal of any judge whom 
they believed may have had a conflict.
  Not surprisingly, several prominent legal and ethics experts have 
reviewed the Lloyd's investment, and the consensus view is that Judge 
Breyer complied with all relevant laws and ethical standards.
  Mr. President, as someone who worked closely with Judge Breyer when 
he served as chief counsel to the Senate Judiciary Committee, I know 
first-hand that he is a man of integrity and good judgment. I cannot 
imagine Judge Breyer intentionally trying to enrich himself by issuing 
an opinion favorable to his own financial interests. In fact, 
throughout the confirmation process, no one has offered any plausible 
explanation of how Judge Breyer's environmental rulings may have 
benefited him.
  I will not speculate on why the New York Times ran its misguided 
editorial, but I do know that there are those on the left-side of the 
political spectrum who may not want a thoughtful moderate like Judge 
Breyer sitting on the Nation's Highest Court.
  Unfortunately, if history is any guide, they will go to great lengths 
to achieve their goals, including trying to smear a good man's good 
reputation.
  Mr. President, I ask unanimous consent to have printed in the Record 
the New York Times editorial of July 26, 1994, entitled ``A cloud on 
the Breyer Nomination.''
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 26, 1994]

                    A Cloud on the Breyer Nomination

       Eager for swift confirmation of the Supreme Court nominee 
     Stephen Breyer, senators of both parties are rushing to a 
     floor vote without fully investigating significant ethical 
     issues connected to the nominee's investments. This 
     irresponsible failure by the senate leaves Judge Breyer with 
     a cloud still hanging over his nomination.
       Judge Breyer, who is Chief Judge of the U.S. Court of 
     Appeals in Boston, answered the Senate Judiciary Committee's 
     questions for three days and won unanimous clearance for a 
     floor vote scheduled for tomorrow. But the committee failed 
     to fully explore the judge's participation in pollution cases 
     despite his investment in a Lloyd's of London venture that 
     heavily insured asbestos and toxic pollution risks in this 
     country.
       At issue is Judge Breyer's compliance with the Federal 
     recusal statute, which requires judges and justices to 
     disqualify themselves when their impartiality ``might 
     reasonably be questioned.'' In addition, they must sit out 
     cases where they have a financial interest in a party to a 
     lawsuit or any interest ``that could be substantially 
     affected by the outcome of the proceeding.''
       Lloyd's was not a named party in any of the eight pollution 
     cases in which Judge Breyer took part. But what if Lloyd's, 
     famous around the world for insuring all kinds of major 
     risks, were an insurer of a company involved in a pollution 
     lawsuit? Judge Breyer did recuse himself from asbestos 
     litigation but, curiously, not from other major pollution 
     disputes. Only senator Howard Metzenbaum saw fit to mention 
     this inconsistency; the committee failed to question the 
     nominee in detail about what steps, if any, he took to find 
     out about Lloyd's involvement as an insurer.
       Judge Breyer assured the committee that he had not violated 
     the standard that requires recusal from cases that would have 
     a ``direct and predictable financial impact'' on his 
     investments. Yet Newsday has reported that Lloyd's was one of 
     the insurers of a company involved in one of the eight 
     pollution cases. That sounds like a direct contradiction of 
     Judge Breyer's testimony. It warranted closer investigation. 
     Could the judge have known about Lloyd's involvement? did he 
     investigate the other cases sufficiently to guard against 
     sitting in a case that might affect his financial interest? 
     Again, the committee was not inquisitive, though Senator 
     Arlen Specter has called for re-examining the recusal law 
     with an eye toward having judges disqualify themselves if 
     their investments are even indirectly involved.
       As it turned out, Judge Breyer's ruling in that case might 
     actually have gone against any financial interest of his own. 
     But the judge surely showed bad judgment in failing to 
     explore Lloyd's involvement. and the incident leaves one 
     wondering how many other cases Judge Breyer ruled on that 
     might have put his Lloyd's investment at risk.
       Judge Breyer, a popular former staff chief for the 
     Judiciary Committee and a moderate liberal, is being rushed 
     through confirmation by democrats trying to please President 
     Clinton and Republicans relieved at the nominee's moderate 
     views. But his possible failure to recuse himself from cases 
     whose outcomes might affect his financial interests has not 
     been thoroughly explored. The Senate is voting on faith and 
     political need, not knowledge. Based on the inadequate record 
     in hand, Judge Breyer has not been shown to deserve the prize 
     that will be awarded him by the Senate.

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