[Congressional Record Volume 140, Number 101 (Thursday, July 28, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 28, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                   NOMINATION OF JUDGE STEPHEN BREYER

  Mr. KOHL. Mr. President, I come here this morning to speak in behalf 
and to support the nomination of Judge Stephen Breyer to the U.S. 
Supreme Court, and to speak briefly--but critically--about the process 
that I believe will result in his confirmation.
  Judge Breyer came before the Judiciary Committee with a reputation as 
a brilliant legal scholar and a fair-minded judge.
  For the most part, the committee's hearings confirmed these 
judgments. Judge Breyer impressed us with his ability to simplify 
complex legal doctrines and cut to the heart of fundamental 
constitutional questions. His answers revealed that he is a moderate, 
that he is a reasoned man of principle with a commitment to the rule of 
law; a man who is likely to strengthen the center of the Supreme Court, 
rather than polarize it.
  Throughout the hearings, two main criticisms were levied against 
Judge Breyer. First, many charged that Judge Breyer acted unethically 
because he ruled in cases that may have indirectly affected his 
investments.
  I do not believe Judge Breyer acted unethically and I do not doubt 
his integrity in the least. If judges had to recuse themselves in every 
case that presented a possible conflict of interest, our courts would 
become paralyzed. But Judge Breyer could have taken more significant 
measures to dispel any appearance of impropiety. I am pleased, 
therefore, that he has promised, at the very least, to divest himself 
of all insurance holdings as soon as possible, although it is not clear 
exactly when that will occur.
  It was also suggested that because Judge Breyer has spent most of his 
life dealing with books and theories, he lacks Justice Blackmun's 
empathy for ``the poor, the powerless and the oppressed.''
  Well, it is true that Judge Breyer did not have an underprivileged 
upbringing. And it is true that he has spent much of his life as a 
legal scholar, rather than a hands-on practitioner. But we should not 
assume that because Judge Breyer has been fortunate, and enjoys the 
life of the mind, he is unable to care about others.
  Judge Breyer seemed to recognize during our confirmation hearings 
that his actions as a Judge have very real consequences for the lives 
of the people the law governs. And he appears to be aware that beyond 
the marble columns of the Supreme Court is a world in which the 
politically powerless are entitled to as much justice as those 
Americans who hire the best lawyers and lobbyists.
  It may be that Judge Breyer still has to demonstrate his professed 
commitment to making the law work for the average person. But I believe 
our confidence in him will be justified.
  Having said this, there was much we did not learn about Stephen 
Breyer, and--despite my confidence in him--this concerns me. Judge 
Breyer's eloquence often gave him the appearance of answering questions 
when, in fact, he actually side-stepped them with sugar-coated 
generalities.
  For example, he would not give an opinion on whether courts should be 
required, at the very least, to consider public health and safety 
before allowing for secrecy in civil litigation. And he refused to 
discuss many subjects, including voting rights jurisprudence, gender-
classifications, and his own decision on abortion counseling--Rust 
versus Sullivan--with any degree of specificity.
  Whenever Judge Breyer felt the need to avoid answering a question, he 
would cloak himself in his black robe and claim that the issue was 
within Congress' domain or that the question took him out of his role 
as a judge. Yet, at the same time, he did speak openly and freely on 
other issues which were just as likely to appear before the Court, or 
just as easily characterized as issues for Congress rather than the 
courts.
  Why? The answer is by now well known: nominees seem only to answer 
questions when they want to--or when they feel they need to.
  I point all this out not to chastise Judge Breyer, whom I respect. 
But I cannot ignore a nominee's unwillingness to answer reasonable 
questions. Indeed, the process demands that we should not.
  Mr. President, we all know that because a Supreme Court Justice has 
life tenure, the confirmation process is crucial--it is the public's 
only opportunity to learn what is in the heart and mind of a nominee. 
Of course, we also recognize that there are limits to what a potential 
Justice of the Supreme Court can say before the Senate.
  But these limits do not justify the type of hedging that we have seen 
from some past nominees--evasion that erodes the Senate's ability to 
faithfully carry out its advise-and-consent responsibilities.
  Judge Breyer was probably more straightforward with the members of 
this committee than many nominees in recent history. In fact, Senator 
Specter went as far as to coin a new standard for nominees to live up 
to: the Breyer Standard.
  In my opinion, however, we still have a way to go before we achieve 
the candor that the confirmation process demands and deserves. So I 
would like to impose an even higher standard on future nominees than 
perhaps would Senator Specter.
  In the meantime, I commend President Clinton for nominating Judge 
Breyer--a man of great ability, who has demonstrated an enduring 
commitment to public service and to the law. I look forward to his 
tenure on the Court.
  The PRESIDING OFFICER. The Senator from Washington [Mr. Gorton] is 
recognized to speak for up to 30 minutes.

                          ____________________