[Congressional Record Volume 140, Number 102 (Friday, July 29, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 NOMINATION OF STEPHEN G. BREYER, OF MASSACHUSETTS, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

  The ACTING PRESIDENT pro tempore. The clerk will report the 
nomination.
  The assistant legislative clerk read the nomination of Stephen G. 
Breyer, of Massachusetts, to be an Associate Justice of the Supreme 
Court of the United States.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the Senator 
from Utah.
  Mr. HATCH. Mr. President, with the permission of the distinguished 
chairman of the Judiciary Committee, I will proceed first on the Breyer 
nomination. Part of the reason for that is that I am also the only non-
Banking-Committee member on the Whitewater committee, and that 
investigation starts at 10 this morning. So my dear friend and 
colleague from Delaware suggested that I go first on the statements on 
the Breyer nomination to the Supreme Court.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
debate on the nomination is limited to 6 hours and is equally divided 
and controlled in the usual fashion.
  The Senator from Utah may proceed.
  Mr. HATCH. Mr. President, I will vote for the confirmation of Judge 
Stephen Breyer to be Associate Justice of the Supreme Court. Let me 
briefly outline the reasons why.
  President Clinton and I are unlikely ever to agree on the ideal 
nominee to be a Supreme Court Justice. Indeed, there have been many 
prominently mentioned potential nominees whom I would in all likelihood 
have vigorously opposed. But I do believe that a President is entitled 
to some deference in the selection of a Supreme Court Justice. If a 
nominee is experienced in the law, is intelligent, has good character 
and temperament, and gives clear and convincing evidence of 
understanding the proper role of the judiciary in our system of 
government, I can support that nominee. I am satisfied that Judge 
Breyer meets this test.
  For the past 14 years, Judge Breyer has distinguished himself on the 
U.S. Court of Appeals for the first circuit. Known for his careful, 
scholarly opinions on a range of difficult issues, he has earned a 
reputation as a moderate pragmatist. His hearing testimony reinforced 
this reputation.
  A danger of judicial pragmatism is that it may give short shrift to 
formal or institutional constraints on judicial action. Indeed, some of 
Judge Breyer's own jurisprudential musings present, in my view, an 
unduly open-ended approach to judicial decisionmaking--an approach that 
is open to manipulation and abuse by judges less moderate and less 
conscientious than Judge Breyer. My confidence that Judge Breyer will 
not himself succumb to the siren calls of judicial activism rests on 
his overall judicial record and on my high regard for his intelligence 
and integrity.
  Several features of Judge Breyer's hearing testimony and judicial 
record warrant highlighting:
  First, while I and other Senators were concerned by Judge Breyer's 
Free Exercise ruling in New Life Baptist Church Academy v. Town of East 
Longmeadow (885 F.2d 940 (1st Cir. 1989)), I took comfort from judge 
Breyer's recognition that ``[t]here is nothing more important to a 
person or to that person's family than a religious principle, and there 
is nothing more important to a family that has those principles than to 
be able to pass those principles and beliefs on to the next 
generation.'' (Unofficial transcript, July 12, 1994, at 73:12-16.)
  It was precisely because I share this view that I was the lead 
sponsor, along with Senator Kennedy, of the Religious Freedom 
Restoration Act, and Judge Breyer stated that he understood the strong 
protections that Congress intended to give to religious liberty under 
that act.
  Second, on the subject of the establishment clause, Judge Breyer 
rejects the extreme secularist view that the establishment clause 
mandates an absolute wall of separation between church and state. Judge 
Breyer instead recognizes that there are ``vast areas'' where religious 
institutions can neutrally receive benefits from the Government. 
(Unofficial transcript, July 14, 1994, at 102:12.)
  He adopts a pragmatic, not an ideological, approach to these issues.
  Third, Judge Breyer recognizes that the death penalty is 
constitutional. He rejects the activist position taken by Justices 
Brennan and Marshall, and more recently by Justice Blackmun, that the 
death penalty violates the eighth amendment.
  Fourth, although Judge Breyer's jurisprudence regarding so-called 
unenumerated rights is in key respects open-ended and manipulable, he 
gives every indication of being cautious and restrained in this area. 
He testified that he remains open to the historical evidence showing 
that the ninth amendment is best understood not as a font of 
affirmative rights but as a reminder that people's rights are 
residually protected by virtue of limitations on the Federal 
Government's enumerated powers. (Unofficial transcript, July 13, 1994, 
at 228:21-229:19.) He further stated that the ninth amendment was not 
incorporated into the 14th amendment and therefore does not apply 
against the States. (Id., at 229:20-230:6.)
  In addition, he agreed that the reasoning and methodology of Justice 
Goldberg's concurrence in the Griswold case would not, and I emphasize 
``would not,'' extend constitutional protection to such things as 
abortion and homosexual conduct. (Id., at 230:7-24).

  Fifth, regrettably, President Clinton has announced a litmus test on 
abortion. I note that there were many persons on the other side of the 
aisle who falsely accused President Reagan and President Bush of 
adopting a litmus test on abortion. That this accusation was false is 
proven by the fact that three Justices appointed by Presidents Reagan 
and Bush comprised part of the majority in the Planned Parenthood 
versus Casey decision. In any event, there has been an embarrassing 
silence about President Clinton's avowed litmus test. I am disappointed 
that only 2 years after the 5 to 4 ruling by the Supreme Court in 
Casey, Judge Breyer stated that he views ``some kind of'' right to 
abortion as settled. (Unofficial transcript, July 13, 1994, at 178:22).
  But his record indicates that he will be far more understanding of 
society's power to protect the rights of the unborn than the Justice 
whom he will replace. In fact, in his one case directly involving State 
regulation of abortion, Judge Breyer voted to uphold a parental consent 
statute. Alone in dissent, he voted to bar the abortion clinics from 
offering more evidence in support of their claim that the statute was 
unconstitutional. His view was that even if the evidence to be offered 
was taken as true, that would not alter the conclusion that the statute 
was constitutional. (Planned Parenthood League of Massachusetts v. 
Bellotti, 868 F.2d 459, 469 (1st Cir. 1989) (Breyer, J., dissenting)).
  Judge Breyer's academic writings also reflect a sensitivity to the 
rights of the unborn. For example, in an article on genetic 
engineering, Judge Breyer emphasized that ``one must be particularly 
sensitive to the risk of injury to the fetus, who cannot look after 
himself.'' (Breyer & Zeckhauser, ``The Regulation of Genetic 
Engineering,'' 1 Man and Medicine 1, 9 (1975).)
  Sixth, I find it curious that many of the same people who are so 
adamant about protecting so-called rights that are not set forth in the 
Constitution are dismissive of economic rights that are expressly 
provided in the Constitution--as, for example, in the takings clause. 
While I do not put Judge Breyer in this category, I am concerned that 
certain of his comments could be read as demoting the takings clause 
and other economic rights to second-class status. As Chief Justice 
Rehnquist stated in a recent opinion for the Court in Dolan v. City of 
Tigard (No. 93-518 (U.S. June 24, 1994)), there is ``no reason why the 
takings clause of the fifth amendment, a much a part of the Bill of 
Rights as the first amendment or fourth amendment, should be relegated 
to the status of a poor relation.'' (Slip op., at 17.)
  There is no need here to explore other areas, such as Judge Breyer's 
fine opinions in such areas as antitrust and administrative law and the 
fourth amendment. Suffice it to say that while I do not agree with all 
his opinions and views, I am confident that he will be a fair and very 
able Justice.
  Finally, let me note that the committee thoroughly investigated Judge 
Breyer's background, including charges relating to his Lloyd's 
investment. While I do not question the good faith of those making 
these charges, the committee's investigation has satisfied me that 
these charges are meritless.
  For these reasons, I am going to support Judge Breyer's confirmation 
to the Supreme Court.
  I might mention there are other reasons as well. Let me just add, as 
a postscript, that I have known Judge Breyer now for approximately 15 
years. I knew him when he was an aide to Senator Kennedy on the 
Judiciary Committee, and I knew him when he was chief counsel of the 
committee.
  I have to say, in those days, as a younger man, as somebody who 
worked for Senator Kennedy--who is a very strong Democratic leader in 
this body--he proved himself to be a person who would help to develop 
consensus, who would work with both sides, who worked in a primarily 
bipartisan way, who did things that were intelligently accomplished, 
and who, of course, served not only Senator Kennedy well but the 
committee as a whole well.
  I have tremendous respect for that. I followed his career since. I 
remember when President Carter was defeated and it looked as though the 
Judiciary Committee was going to deny Judge Breyer, or should I say, 
then Stephen Breyer, the staffer, the judgeship opportunity on the 
First Circuit Court of Appeals.
  I can remember what happened then. After President Reagan was 
elected, of course, a number of us were willing to put him on that 
court because of his sterling reputation because we knew him well and 
we thought he would make a great judge, which has proven to be true 
over the last 14 years.
  So I feel very strongly about Judge Stephen Breyer. I feel very 
strongly that he will make a fine Justice on the Supreme Court, and I 
have a personal high regard for him and his family. I wish him well. I 
hope that as many of our Senators as possible will vote for this judge 
to be Justice on the Supreme Court because I think he deserves it.
  Finally, I would like to compliment the President because I have 
worked with a number of Presidents with regard to Supreme Court 
nominations, all of whom have been good to work with. But President 
Clinton has been especially considerate of his particular 
responsibility of appointing Supreme Court Justices. I think part of 
that probably comes from the fact that President Clinton is a lawyer 
himself, has taught constitutional law, has been a Governor and, of 
course, has had to work around constitutional principles for most of 
his professional life.
  So he has a high regard for this position. He has a high regard for 
the Supreme Court of the United States of America and, in my 
conversations with him, he had a very high regard for doing what is 
right in this area. There were pushes and pulls, as there always are in 
these constitutional battles over who is going to sit on the Court, 
among other things, and there were pushes and pulls on this President. 
I found in every instance that his desire was to get the very best 
person he could who would have a reasonable chance of being accepted by 
the Senate and confirmed by the Senate and who would bring distinction 
and ability to the Supreme Court of the United States of America.
  I want to compliment the President for that. I compliment him for 
working very strongly with the majority and Senator Biden, and others, 
Senator Kennedy in particular. I compliment him for working with the 
minority as well and to make us part of that equation. I think it has 
paid off for the President because almost everybody has acclaimed this 
nominee and, frankly, I hope that he will be confirmed overwhelmingly 
on the floor today.
  I do not want to disparage the feelings of some who have expressed 
opposition to Judge Breyer in this body or in the media. Some of the 
issues that have been raised are certainly issues that we have 
considered in the committee, and we have considered them a lot more 
significantly and in much greater detail than some in the media have 
indicated.
  We have found that there are no justifications for the criticisms of 
Judge Breyer in these areas. I suppose we all make mistakes, and I 
suppose we can all be criticized.
  In the case of Lloyd's, it may have been an investment mistake, but 
keep in mind Judge Breyer's wife is from Great Britain; her family is a 
prominent family over there. Lloyd's of London was considered to be, at 
the time, the finest insurance company in the world by many in England 
and elsewhere, even in this country, and it has fallen on harder times. 
That, nobody, including myself, could possibly foresee.
  So there are many other things that can be said on that issue. I do 
not intend to get into it. Suffice it to say that this is an honest 
man. He is a man of immense qualifications. He is a man of immense 
integrity. He is a person who has a tremendous judicial and legal mind. 
He is a person who is fair and open. He is a person who, I think, will 
have an appropriate temperament for the Court, and he is a person in 
whom I have a great deal of confidence. I think he should be confirmed.
  I do not know of anybody in this body who takes nominations to the 
Supreme Court any more seriously than I do. Certainly, I think all 
Senators take these nominations very seriously. But this is very 
important to our country. This is the third branch of Government. This 
is a coequal branch of Government, and we have to get the very best 
people we can to serve in these positions. In this case, with this 
President and this administration, I find that Judge Stephen Breyer is 
an excellent choice, and I will support him with everything I have.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, counsel to me has indicated that--I do not 
think I said this--but they felt that I said the investment in Lloyd's 
of London was a clear-cut mistake. If I did say that, that is not what 
I meant. It may have been an investment that did not turn out well. 
But, in all honesty, it was not a mistake.
  Lloyd's of London was considered to be one of the finest insurance 
institutions in the world by almost everybody, including people in this 
country, but especially people from Great Britain. We cannot impose a 
standard that people cannot make bad investments. People do. I have 
been known to make a few myself, although pittances in comparison. The 
fact is that my wife feels that almost all my investments have been 
bad.
  I did not mean to convey that. If I did, I want to correct the Record 
at this time so that no one will misconstrue what I am saying.
  Our investigation of that certainly went into all the details 
pertaining to it. Frankly, I think Judge Breyer has been candid about 
the investment and about what has happened, and he has done everything 
in his power to contain any damage that could possibly come to him and 
to his particular estate. And according to experts, he has backed up 
his approach to it by having acquired insurance that should cover any 
potential exposure that he may have.
  But even if it does not, an investment turning sour is not 
necessarily a disqualifying event with regard to a judgeship 
nomination.
  So I want to make sure that the Record is clear because if I did say 
that, I did not mean to say that.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, is the time equally divided?
  The ACTING PRESIDENT pro tempore. The Senator would need consent.
  Mr. HATCH. I suggest the absence of a quorum but the time be equally 
divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HATCH. I ask unanimous consent that Lisa Heinzerling and Bill 
Banks be given the privileges of the floor throughout the Breyer 
nomination.
  The ACTING PRESIDENT pro tempore. Is there objection? The Chair hears 
none, and it is so ordered.
  Mr. HATCH. I suggest the absence of a quorum with the time divided 
equally.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KENNEDY. Mr. President, I yield such time as I might use.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts is 
recognized.
  Mr. KENNEDY. Mr. President, it is a great honor and privilege to 
support the nomination of Judge Stephen G. Breyer to be an Associate 
Justice of the Supreme Court.
  The Constitution establishes our democracy and protects the basic 
freedoms of all our citizens. The Framers recognized that an 
independent judiciary was necessary to enforce the individual liberties 
guaranteed by the Constitution, and they created the Supreme Court as 
the ultimate guardian of our rights and liberties. Few responsibilities 
we have as Senators are more important than our responsibility to 
advise and consent to the nominations by the President to the Supreme 
Court.
  Judge Breyer is extraordinarily well qualified to serve on the 
Nation's highest court. Throughout his long and distinguished career, 
he has demonstrated an outstanding intellect, unquestioned integrity 
and temperament, and a deep and abiding commitment to the Constitution 
and the rule of law.
  He compiled an outstanding academic record as an undergraduate at 
Stanford University, as a Marshall Scholar at Oxford, and as a student 
and member of the Law Review at Harvard Law School. After serving as a 
law clerk to Supreme Court Justice Arthur Goldberg, he joined the 
Antitrust Division at the Department of Justice, where he pioneered 
innovative approaches to enforcing the antitrust laws, not only to 
protect consumers from unfair practices, but also to prohibit housing 
discrimination.
  He then joined the faculty at Harvard Law School, where he became one 
of the Nation's leading experts on economic regulation and 
administrative law, devoting his energy and talent to improving our 
free enterprise system and our democracy.
  In 1973, he took a leave of absence to assist Watergate Special 
Prosecutor Archibald Cox in that historic investigation.
  The following year, he became Special Counsel to the Senate Judiciary 
Committee's Administrative Practices and Procedures Subcommittee when I 
was chairman of the subcommittee. I have known Judge Breyer well ever 
since, and I have no doubt that he will be an outstanding member of the 
Supreme Court.
  His brilliance and skill at working productively with Senators from 
both political parties were indispensable to our bipartisan effort in 
the 1970's to deregulate the airline industry and the trucking 
industry. Judge Breyer dedicated himself to assuring that all Americans 
would have safe and efficient air travel at the lowest possible prices 
for the public, and that shippers and consumers alike would have the 
benefits of lower prices in the trucking industry.
  Judge Breyer returned to Capitol Hill in 1979 as chief counsel of the 
Judiciary Committee, when I was chairman. He gained the respect and 
affection of every member of the committee--Republicans and Democrats--
because he was scrupulously fair, and because he consistently and 
creatively sought to find common ground to achieve the greatest good 
for the American people.
  The bipartisan admiration for Judge Breyer was apparent in 1980, when 
his appointment to the Court of Appeals for the First Circuit was the 
only judicial nomination confirmed during the lame duck session of 
Congress at the end of the Carter administration.
  As a member and later as chief judge of the court of appeals, Judge 
Breyer has distinguished himself as a preeminent jurist. His opinions 
are brilliantly reasoned and clearly written. They construe the law in 
a practical fashion to protect the fundamental rights and liberties of 
all Americans.
  As one of the first members of the Sentencing Commission, Judge 
Breyer is widely credited with developing tough but fair guidelines to 
assure that criminals who commit similar crimes receive similar 
sentences. He excelled at the tough and thankless task of forging 
consensus on these difficult issues.
  As a judge, he has also continued his commitment to legal education 
and legal scholarship. He has continued to teach courses at Harvard Law 
School, and he has also continued to write and publish important 
articles and books analyzing questions of law and government.
  Judge Breyer is one of the Nation's foremost scholars of the 
regulatory process, and his expertise in this complex area will be a 
major asset to the Supreme Court.
  His recent book on regulation drew praise from leading experts on all 
sides of the debate. He has sought to assure that the public health and 
safety are protected, while avoiding needless inefficiency and waste in 
government. Not everyone agrees with all his views, but I believe 
everyone will agree that his views have contributed immensely to our 
understanding of these complex issues in our modern society.
  In addition, Judge Breyer is one of the leading exponents of the view 
that laws should be construed in the manner that Congress intended. If 
confirmed, he will add a needed and practical perspective to the many 
important questions of statutory interpretation that come before the 
Supreme Court.
  Judge Breyer's 3 days of testimony before the Judiciary Committee 
earlier this month revealed to the Nation what we in Massachusetts have 
known for decades. Judge Breyer is a brilliant and fair-minded judge, 
dedicated to construing our laws to enhance the lives and protect the 
basic rights of every citizen.
  He views the Constitution as a living charter to protect the 
individual against excessive government intrusion.
  He is respectful of the religious traditions of the American people 
and committed to ensuring that all Americans remain free to follow 
their conscience, free from governmental interference.
  He recognizes the key role of the Federal courts in remedying 
discrimination in all its forms.
  He views the antitrust laws as important statutes designed to promote 
and enhance economic competition, so that consumers enjoy the highest 
quality goods and services at the lowest possible prices.
  And he believes in the importance of environmental health and safety 
laws to protect the lives of all Americans. On that point, I would like 
to introduce into the Record a letter from Mr. Douglas Foy, the 
executive director of the Conservation Law Foundation, the leading 
public interest environmental law group in New England. Mr. Foy writes:

       Stephen Breyer has fashioned a remarkable record on 
     environmental matters that have come before the First Circuit 
     Court of Appeals. His opinions reflect an unusual sensitivity 
     to natural resource concerns, whether in matters involving 
     air and water pollution, offshore oil and gas drilling, the 
     clean-up of Boston Harbor, or protection of the Cape Cod 
     National Seashore. The Court's line of decisions on the 
     obligations imposed by NEPA are leading precedents, 
     reflecting a penetrating understanding of the law's 
     requirements and of agencies' cavalier efforts to avoid its 
     application. Judge Breyer brings a New Englander's common 
     sense to natural resource matters, and couples that common 
     sense with an impressive understanding of administrative 
     procedure and agency foibles. * * *
       My only regret is that Judge Breyer cannot sit on the 
     Supreme Court and the First Circuit at the same time.

  I would like to address myself very briefly to the questions raised 
and belabored in some quarters regarding Judge Breyer's investment in 
Lloyd's of London. The Judiciary Committee thoroughly examined the 
Lloyd's issue.
  The committee's investigators reviewed hundreds of pages of documents 
relating to it, and Judge Breyer was extensively questioned about it 
during the committee's hearings.
  The Judiciary Committee obtained opinions from leading experts on 
judicial ethics and environmental insurance litigation. The 
overwhelming majority of those consulted concluded that Judge Breyer 
violated no ethical rules.
  Judge Breyer publicly disclosed his Lloyd's investments each year, so 
that litigants could decide for themselves whether to seek his recusal 
in any particular case. He always recused himself from any case where 
Lloyd's was a party, or where it appeared from the court papers that 
Lloyd's insured a party in the litigation or otherwise had a direct 
interest in the outcome. He has never sat in any such case.
  After carefully reviewing the evidence, every member of the Judiciary 
Committee concluded that Judge Breyer had acted in full compliance with 
the ethics rules, and every Member voted in favor of his nomination.
  The Bar Association of the city of New York and the American Bar 
Association each found that Judge Breyer had unquestionable integrity. 
Indeed, the ABA gave Judge Breyer its highest rating. Its letter to the 
Judiciary Committee attests to the high esteem in which Judge Breyer's 
integrity is viewed by those who have served with him on the Federal 
courts. I would like to read an excerpt from the ABA letter:

       Chief Judge Breyer has earned and enjoys an excellent 
     general reputation for his integrity and character. No one 
     interviewed by the Committee had any question or doubt in 
     this regard. His colleagues in the First Circuit, where he 
     has served for fourteen years, the last four as Chief Judge, 
     commented on his character and integrity in terms such as 
     these: ``He is absolutely first rate, a remarkable 
     combination of one who has character and is intelligent, yet 
     is a personable and likeable human being''; ``He combines 
     acute intelligence and a deep sense of humanity. He is a down 
     to earth human being who is very smart. This is simply a 
     superb appointment.''

  In closing, I would like to read briefly from a letter by Judge Leon 
Higginbotham, who recently retired from the Court of Appeals for the 
Third Circuit after a distinguished career as one of the most respected 
jurists of his generation.

       I write on the basis of my having served for 29 years as a 
     federal judge on either the District Court or the Court of 
     Appeals, before my resignation in March 1993. * * * I served 
     on the Judicial Conference of the United States with Judge 
     Breyer. Upon special designation prior to my retirement, I 
     had the pleasure of sitting with him and some of his 
     colleagues on the United States Court of Appeals for the 
     First Circuit. I have read with care and relied on many of 
     his opinions.
       On the basis of these total experiences, I am confident 
     that he is one of the most prominent, insightful and 
     responsible federal judges I have ever met. He will bring to 
     the United States Supreme Court an extraordinary intellect, a 
     high respect for precedent and the rule of law, a sensitivity 
     to patent injustices, and remarkable collegial skills to 
     cause the Supreme Court to function with as much public 
     institutional harmony as is possible. I feel certain that, 
     after five years, he will be regarded as one of the most 
     outstanding justices in the history of the United States 
     Supreme Court.

  Joseph Story, Oliver Wendell Holmes, Louis Brandeis, Felix 
Frankfurter--for nearly two centuries, Massachusetts has sent brilliant 
justices to the Supreme Court who have combined outstanding legal 
scholarship with a commitment to making the law work to enhance the 
lives of ordinary Americans.
  I have every confidence that Stephen Breyer will join that 
illustrious list of the finest justices ever to serve on our highest 
court.
  I congratulate President Clinton in this outstanding appointment, and 
I urge my colleagues to vote to confirm the nomination.
  Mr. President, I ask unanimous consent that the letter dated June 30, 
1994, from Douglas Foy, executive director of the Conservation Law 
Foundation be printed on the Record, along with the letter from the 
American Bar Association Standing Committee on Federal Judiciary dated 
July 11, 1994, a letter dated July 11, 1994, from A. Leon Higginbotham, 
Jr., and a brief discussion and a series of letters regarding Judge 
Breyer's investment in Lloyd's be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  Conservation Law Foundation,

                                        Boston, MA, June 30, 1994.
       To Whom It May Concern: Stephen Breyer has fashioned a 
     remarkable record on environmental matters that have come 
     before the First Circuit Court of Appeals. His opinions 
     reflect an unusual sensitivity to natural resource concerns, 
     whether in matters involving air and water pollution, off-
     shore oil and gas drilling, and clean-up of Boston Harbor, or 
     protection of the Cape Cod National Seashore. The Court's 
     line of decisions on the obligations imposed by NEPA are 
     leading precedents, reflecting a penetrating understanding of 
     the law's requirements and of agencies' cavalier efforts to 
     avoid its application.
       Judge Breyer brings a New Englander's common sense to 
     natural resource matters, and couples that common sense with 
     an impressive understanding of administrative procedure and 
     agency foibles. Much of the development of environmental law 
     in the next decade will revolve around the application and 
     enforcement of pivotal federal laws (such as the Clean Air 
     Act, National Energy Act, Magnuson Act, and ISTEA), by 
     agencies, in the states and regions. Stephen Breyer is 
     precisely the kind of judge to whom we should entrust review 
     of agency compliance with those laws. My only regret is that 
     Judge Breyer cannot sit on the Supreme Court and the First 
     Circuit at the same time.
           Sincerely,
                                                   Douglas I. Foy,
                                               Executive Director.
                                  ____

         American Bar Association, Standing Committee on Federal 
           Judiciary,
                                                    July 11, 1994.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Committee on the Judiciary, Washington, DC.
     Re: Hon. Stephen G. Breyer.
       Dear Mr. Chairman: This letter is submitted in response to 
     the invitation from the Senate Committee on the Judiciary to 
     the Standing Committee on Federal Judiciary of the American 
     Bar Association (the ``Committee'') to present its report 
     regarding the nomination of the Honorable Stephen G. Breyer 
     to be an Associate Justice of the Supreme Court of the United 
     States.
       The Committee's evaluation of Chief Judge Breyer is based 
     on an investigation of his professional qualifications, that 
     is, his integrity, judicial temperament and professional 
     competence. Consistent with long standing policy, the 
     Committee did not undertake any examination or consideration 
     of Chief Judge Breyer's political ideology or his views on 
     any issues that might come before the Supreme Court.
       To merit the Committee's evaluation of Qualified or Well 
     Qualified the Supreme Court nominee must be at the top of the 
     legal profession, have outstanding legal ability and wide 
     experience and meet the highest standards of integrity, 
     professional competence and judicial temperament. The 
     evaluation of Well Qualified is reserved for those found to 
     merit the Committee's strongest affirmative endorsement.
       I am pleased to report that the Committee finds Chief Judge 
     Breyer to be Well Qualified for appointment as an Associate 
     Justice of the Supreme Court of the United States. This 
     determination was unanimous.
       In conducting the investigation members of the Committee 
     personally interviewed more than 300 federal judges, 
     including present and retired members of the Supreme Court of 
     the United States, members of the Federal Courts of Appeals, 
     members of the Federal District Courts, Federal Magistrate 
     Judges, Federal Bankruptcy Judges, and members of State 
     Courts. The investigation included all colleagues of Chief 
     Judge Breyer on the United States Court of Appeals for the 
     First Circuit, all Federal District Court Judges from the 
     District of Massachusetts, and all the justices on the 
     Supreme Judicial Court of Massachusetts. Numerous federal and 
     state court judges from the other states in the First Circuit 
     were also interviewed.
       Members of the Committee personally questioned several 
     hundred other individuals, including practicing lawyers 
     throughout the United States, former law clerks and lawyers 
     who have appeared before Chief Judge Breyer. Committee 
     members also interviewed law school deans, faculty members of 
     law schools and constitutional scholars throughout the United 
     States, including professors at Harvard Law School, where 
     Chief Judge Breyer has served on the faculty since 1967.
       The Committee also had available the report prepared in 
     1980 by the Committee in connection with the investigation of 
     Chief Judge Breyer for appointment to the United States Court 
     of Appeals for the First Circuit. He was at that time found 
     by a majority of the Committee to be Qualified and by a 
     substantial minority Well Qualified for appointment to that 
     Court.
       It has been the practice of the Committee to ask groups of 
     distinguished legal scholars and Supreme Court practitioners 
     to review independently all of the opinions written by 
     nominees for the Supreme Court. This practice was followed 
     again here and Chief Judge Breyer's opinions were reviewed 
     by: (1) a Reading Group of distinguished lawyers chaired by 
     Rex E. Lee, formerly Solicitor General of the United States 
     and presently President of Brigham Young University, 
     consisting of a diverse group of 10 lawyers, all of whom have 
     practices and argued cases in the Supreme Court; and (2) a 
     Reading Group chaired by Professor Nicholas S. Zeppos of 
     Vanderbilt University School of Law, consisting of 26 members 
     of that law school's faculty. Members of the two Reading 
     Groups who participated are listed on Exhibit A to this 
     letter.
       The two Reading Groups reported to the Committee their 
     independent analyses of Chief Judge Breyer's opinions and 
     other writings. These reports were evaluated by the members 
     of our Committee, who also read opinions of Chief Judge 
     Breyer and his published writings on a variety of legal 
     subjects.


                               Evaluation

                               Integrity

       Chief Judge Breyer has earned and enjoys an excellent 
     general reputation for his integrity and character. No one 
     interviewed by the Committee had any question or doubt in 
     this regard. His colleagues in the First Circuit, where he 
     has served for fourteen years, the last four as Chief Judge, 
     commented on his character and integrity in terms such as 
     these: ``He is absolutely first rate, a remarkable 
     combination of one who has character and is intelligent, yet 
     is a personable and likeable human being''; ``He is eminently 
     well qualified, of the highest character''; ``He combines 
     acute intelligence and a deep sense of humanity. He is a down 
     to earth human being who is very smart. This is simply a 
     superb appointment.''

                              Temperament

       Chief Judge Breyer's judicial temperament also meets the 
     highest standards set by the Committee for appointment to the 
     Supreme Court.
       His colleagues on the First Circuit and on the Harvard Law 
     School faculty who have worked with him for up to twenty-five 
     years, Federal District Court judges, former law clerks, his 
     secretary of almost fourteen years, and counsel who have 
     argued cases before him, uniformly give Chief Judge Breyer 
     the highest praise for his demeanor, temperament, and manner 
     of treating people. The Court of Appeals Judges in the First 
     Circuit universally credit Chief Judge Breyer for the strong 
     collegiality that exists in the Circuit, for his remarkable 
     ability to build consensus, for his sensitivity and good 
     grace, and for his outstanding leadership skills.
       Represenstative comments from his colleagues on the First 
     Circuit Court of Appeals include these: ``He does not 
     browbeat, and he is a genius at forging consensus and 
     compromise''; ``He has a wonderful temperament''; ``He is 
     universally well liked and respected by all of us on the 
     Court''; ``He can soften rigid positions with gentle humor''; 
     ``He is a master at getting consensus on court  decisions''; 
     ``He has very good judgment, is stimulating to be around, 
     and is not arrogant.''
       District Court Judges in the First Circuit also praised 
     Chief Judge Breyer's judicial temperament: ``He is a great 
     leader''; ``He is humane, not impressed with his own 
     intelligence, which is extremely powerful''; ``He has great 
     sensitivity toward lower court judges . . . he doesn't hold 
     anyone up to ridicule, as other appellate judges do 
     sometimes''; ``As Chief Judge of the First Circuit he has 
     been superb, a true leader''; ``He is very well liked by all 
     the members of the First Circuit community. The Court's 
     strong collegiality is directly attributable to Steve 
     Breyer's wonderful personal skills''; ``He is a brilliant 
     judge''; ``He conducts himself beautifully on the bench--
     bright and a perfect gentleman.''
       To the same effect are the comments of his colleagues on 
     the Harvard Law School faculty, his former law clerks and the 
     lawyers who have argued cases before him. Chief Judge Breyer 
     clearly possesses and exhibits the highest level of judicial 
     temperament.

                        Professional Competence

       Chief Judge Breyer's educational background amply prepared 
     him for service on the Supreme Court of the United States. He 
     attended public schools in San Francisco, graduated from 
     Stanford University in 1959 with highest honors in 
     philosophy, attended Oxford University as a Marshall Scholar, 
     receiving First Class Honors, and graduated from Harvard Law 
     School in 1964, Magna Cum Laude. He served as Articles Editor 
     of the Harvard Law Review. After law school he served as Law 
     Clerk to Supreme Court Justice Arthur J. Goldberg.
       Following his Clerkship on the Supreme Court, Chief Judge 
     Breyer began a career with the Federal Government and then an 
     academic career at Harvard Law School, where he has been a 
     member of the faculty since 1967.
       His service with the Federal Government included the 
     positions of Special Assistant to the Assistant Attorney 
     General (Antitrust); Assistant Special Prosecutor, Watergate 
     Special Prosecution Force, U.S. Department of Justice; 
     Special Counsel, Administrative Practices Sub-Committee, U.S. 
     Senate Committee on the Judiciary; and Chief Counsel, U.S. 
     Senate Judiciary Committee. He was appointed to the First 
     Circuit Court of Appeals in 1980, and became Chief Judge in 
     1990. During the years 1985-89 he was a Member of the United 
     States Sentencing Commission, and played a major role in the 
     drafting of the Sentencing Guidelines. His twenty-seven year 
     affiliation with Harvard Law School has included the 
     positions of Assistant Professor, Professor, and, since 
     becoming a Judge on the First Circuit Court of Appeals, 
     Lecturer.
       He has developed and maintained broad interests. Throughout 
     his career he has participated actively in legal 
     organizations and has lectured extensively about legal 
     education. He is an active Member of the American Law 
     Institute, and has also been a Member of a Carnegie 
     Commission group studying the relation of science and the 
     courts (Task Force on Science and Technology in Judicial and 
     Regulatory Decision Making). He has participated actively in 
     the work of the American Bar Association (ABA), in particular 
     as a Member of the Council of the ABA Administrative Law 
     Section and the select ABA Committee on Ethics in Government.
       During his fourteen years as a Judge on the First Circuit 
     Court of Appeals he has written approximately 600 opinions 
     and numerous books, monographs, and articles which are most 
     impressive, and which establish quite clearly that he is a 
     scholar of the first rank. In addition to his extensive 
     writings, he has delivered numerous Honorary Lectures during 
     the past eleven years, including the prestigious Holmes 
     Lectures at Harvard University which were published in book 
     form by Harvard University Press in 1993 in a volume entitled 
     ``Breaking the Vicious Circle: Toward Effective Risk 
     Regulation.''
       The legal opinions that he has written during his fourteen 
     years on the First Circuit Court of Appeals cover wide-
     ranging subjects. He has taken special interest in 
     Administrative Law (which he has taught at Harvard Law 
     School), in government regulatory matters, most notably 
     airline deregulation, and the Sentencing Guidelines. Chief 
     Judge Breyer was praised repeatedly during the Committee's 
     investigation for his excellent writing skills. His 
     colleagues on the First Circuit call him ``brilliant'' and 
     ``a genius'' in crafting legal opinions. Federal District 
     Court Judges, even those he has reversed in appellate 
     opinions, praise highly Chief Judge Breyer's writing and 
     analytical skills. Numerous Federal District Court Judges 
     remarked that Chief Judge Breyer writes so clearly (without 
     footnotes) that a District Court Judge knows precisely what 
     is expected of him or her in an appellate opinion written by 
     Chief Judge Breyer. Chief Judge Breyer's writings reflect a 
     high level of scholarship required of a Justice of the 
     Supreme Court of the United States.
       The comprehensive reports submitted to the Committee by the 
     two Reading Groups of scholars and Supreme Court 
     practitioners confirm the Committee's own conclusions 
     concerning the scholarship and writing ability of Chief Judge 
     Breyer. The Chairman of one of the two reading groups 
     summarized his colleagues' assessment of Chief Judge 
     Breyer's opinions and other writings as follows:
       ``Judge Breyer is a person of enormous intellectual ability 
     with an outstanding ability to write clearly and 
     persuasively. His opinions reflect a wide breadth of 
     knowledge about the law and an overriding commitment to 
     deeply principled and objective decision making. His work is 
     evidence of a judge keenly aware of the power and 
     corresponding responsibility that go with his office.''
       The Chairman of the other Reading Group summarized his 
     colleagues' assessment of Chief Judge Breyer's writings as 
     follows:
       ``Judge Breyer's scholarly ability was praised by virtually 
     every Committee member. He was found to `display the 
     intellectual habits associated with the most respected 
     thinking of our times: a preference for the complex over the 
     simple and the particular over the general, a willingness to 
     suspend judgment, and a robust tolerance of conceptual 
     ambiguity.' His opinions, furthermore, repeatedly demonstrate 
     `a realistic assessment' of `evolving case law,' and `are 
     generally well-researched and complete without being 
     pedantic.' `Whenever there is a significant debate about . . 
     . applicable legal principles, Judge Breyer exhibits a 
     determined effort to analyze and apply the governing doctine 
     . . . his work product is not only scholarly, it is also free 
     from recrimination or insinuation, even when he seems plainly 
     skeptical. Judge Breyer's opinions are careful . . . , 
     tolerant and polite.'''
       The same Reading Group Chairman perhaps best summarized the 
     reasons why both Reading Groups have praised the excellence 
     of Chief Judge Breyer writing and scholarship in the 
     following words:
       ``He is a lawyer's lawyer and a judge's judge. He is 
     careful, scholarly, dispassionate, and objective. 
     Furthermore, he recognizes that there are limits to his own 
     abilities, as a jurist, to resolve every dispute engendered 
     by the contentious press of modern life.''
       Our Committee is fully satisfied that Chief Judge Breyer 
     meets the highest standard of professional competence 
     required for a seat on the Supreme Court. His academic 
     training, his broad experience in the Federal Government, his 
     service on the faculty of a distinguished law school, his 
     scholarly writings and his distinguished service for fourteen 
     years (four as Chief Judge) on the Court of Appeals dealing 
     with many of the same kinds of matters that will come before 
     the Supreme Court, fully estabish his professional 
     competence.


                               conclusion

       Based on the information available to it, the Committee is 
     of the unanimous opinion that Chief Judge Breyer is Well 
     Qualified for appointment to the Supreme Court of the United 
     States. This is the Committee's highest rating for a Supreme 
     Court nominee.
       The Committee will review its report at the conclusion of 
     the public hearings and notify you if any circumstances have 
     developed that would require a modification of these views.
       On behalf of our Committee, I wish to thank you and the 
     Members of the Judiciary Committee for the invitation to 
     participate in the Confirmation Hearings on the nomination of 
     the Honorable Stephen G. Breyer to the Supreme Court of the 
     United States.
           Respectfully submitted,
                                                Robert P. Watkins,
                                                            Chair.
                                  ____

                                             Paul, Weiss, Rifkind,


                                           Wharton & Garrison,

                                      New York, NY, July 11, 1994.
     Hon. Joseph R. Biden,
     Chairman, Senate Judiciary Committee, Dirksen Building, 
         Washington, DC.
       Dear Senator Biden: On my own volition, I write this letter 
     to note my great professional and personal admiration for 
     Judge Stephen G. Breyer and to express my wish that your 
     Committee promptly affirm his nomination for the position of 
     Associate Justice of the United States Supreme Court.
       I am presently a professor at Harvard University and of 
     counsel with Paul, Weiss, Rifkind, Wharton & Garrison. I 
     write on the basis of my having served for 29 years as a 
     federal judge on either the District Court or the Court of 
     Appeals, before my resignation in March 1993. Prior to my 
     appointments to the federal courts, I served as a 
     Commissioner of the Federal Trade Commission, a Commissioner 
     of the Pennsylvania Human Relations Commission, a partner in 
     a small private practice law firm--consisting of solely 
     African American lawyers--and, in the early 1960s, I was 
     President of the Philadelphia Branch of the NAACP.
       I served on the Judicial Conference of the United States 
     with Judge Breyer. Upon special designation prior to my 
     retirement, I had the pleasure of sitting with him and some 
     of his other colleagues on the United States Court of Appeals 
     for the First Circuit. I have read with care and relied on 
     many of his opinions.
       On the basis of these total experiences, I am confident 
     that he is one of the most prominent, insightful and 
     responsible federal judges I have ever met. He will bring the 
     United States Supreme Court an extraordinary intellect, a 
     high respect for precedent and the rule of law, a sensitivity 
     to patent injustices and remarkable collegial skills to cause 
     the Supreme Court to function with as much public 
     institutional harmony as is possible.
       I feel certain that, after five years, he will be regarded 
     as one of the most outstanding justices in the history of the 
     United States Supreme Court. I urge the Committee's prompt 
     confirmation of his nomination.
       With warmest regards and highest esteem, I am
           Respectfully,
                                         A. Leon Higginbotham, Jr.
                                  ____


             Judge Breyer and Lloyd's--Background and Facts

       Numerous misleading statements have been made in recent 
     weeks about Judge Stephen Breyer's investments in Lloyd's, 
     the London insurance company. The Judiciary Committee 
     thoroughly investigated all aspects of this complex issue and 
     concluded that there is no reasonable basis to question Judge 
     Breyer's integrity or his qualifications for the Supreme 
     Court. There is no factual basis for assertions that Judge 
     Breyer is likely to suffer massive losses from the 
     investment, that he will be unable to escape from the 
     investment for many years, or that the investment reflects 
     poor judgment. To the contrary, as the following five points 
     make clear, the facts are entirely inconsistent with any such 
     assertions.
       1. Judge Breyer is not trapped in the Lloyd's investment 
     for a long period of time. Judge Breyer withdrew from his 
     Lloyd's investment in 1988, with the single exception of a 
     1985 syndicate (Merrett 418) which remains ``open.'' All 
     current indications are that Judge Breyer will be able to 
     terminate his last remaining involvement with Lloyd's in the 
     near future. The Merrett Syndicate is expected to close in 
     approximately one year. According to Lloyd's General Counsel, 
     an entity known as ``NewCo'' is being formed to assume the 
     remaining liabilities of syndicates like Merrett 418 in 
     exchange for their retained reserves. Even if it becomes 
     necessary to ask for additional modest contributions from 
     investors, the establishment of NewCo is expected to 
     terminate--absolutely and finally--all of Judge Breyer's 
     remaining exposure for Merrett 418's liabilities.
       2. Judge Breyer is not even likely to face substantial 
     personal financial losses from his investment in Lloyd's. 
     Demonstrating the very prudence that critics suggest he 
     lacks, Judge Breyer took the precaution of purchasing 
     personal stop-loss insurance to cover any losses he might 
     realistically incur because of his Lloyd's investment. The 
     $37,000 deductible has already been paid. The policy will 
     cover all further losses up to $225,000. According to the 
     underwriter's current projections, Judge Breyer's total 
     liability will be approximately $44,000. Even the ``worst 
     case'' losses of $168,000 to $187,000 projected by Chatset's 
     Guide, a leading independent authority on syndicate 
     liabilities, are well within Judge Breyer's insurance 
     coverage. In addition to his $225,000 stop-loss insurance, 
     Judge Breyer has approximately $220,000 in profits from his 
     investments in Lloyd's. Thus Merrett 418's losses would need 
     to be more than double even the most pessimistic current 
     projections before Judge Breyer incurs any net additional 
     personal loss whatever.
       3. Assertions that Lloyd's investors have unlimited 
     liability are highly misleading. Investor's losses (or 
     profits) are always directly proportional to the size of 
     their contributions to the total pool of money invested in 
     the syndicate. In light of Judge Breyer's relatively modest 
     initial investment in Merrett 418, he would be responsible 
     for only 1/5600 of the total losses. With his stop-loss 
     insurance and his substantial retained earnings, Judge Breyer 
     will not incur any additional personal loss unless his share 
     of the syndicate's liability exceeds $445,000. Thus, for 
     Judge Breyer to suffer even another penny of loss, the total 
     liability of the syndicate must exceed approximately $2.5 
     billion (5600 $445,000). Losses at that level are far beyond 
     even the largest estimate. In fact, the total loss of all the 
     hundreds of Lloyd's syndicates in Lloyd's worst year in 
     history (1990) amounted to $5.5 billion. For Judge Breyer to 
     lose all of his remaining personal assets, Merrett 418's 
     losses would have to exceed $8 billion--a figure that has no 
     credibility whatever in light of the known facts.
       4. At the time Judge Breyer invested in Lloyd's, it was 
     considered a stable and prudent investment. During the late 
     1970's and 1980's, when Judge Breyer invested in Lloyd's, 
     sophisticated investors considered Lloyd's a sound, prudent, 
     and--based on its historic track record--conservative 
     investment. For most of its 300-year history, Lloyd's has 
     returned substantial profits to its members. Given this 
     established reputation as a sound and prudent investment, it 
     is no surprise that Lloyd's attracted a large number of 
     highly prominent investors in Great Britain, including many 
     senior British judges and more than forty members of 
     Parliament. In addition, over 3000 Americans, many of whom 
     also are in positions of prominence, have invested in 
     Lloyd's.
       5. Judge Breyer's investment in Lloyd's will require his 
     recusal from only a small number of cases on the Supreme 
     Court, if any. As Judge Breyer testified before the Judiciary 
     Committee, he will be required to recuse himself from any 
     case which is likely to have a ``direct and predictable'' 
     effect on his investment, but not from cases having only 
     remote or speculative effects. Even a broad application of 
     this standard is unlikely to require his recusal from all but 
     a very few cases before the Supreme Court.
       In light of these facts, Judge Breyer's investment in 
     Lloyd's does not detract from his impeccable qualifications 
     to serve on the Supreme Court. He will serve with outstanding 
     distinction as a member of that Court, and he deserves to be 
     confirmed by the Senate.
                                  ____

                                                    July 25, 1994.
     Lloyd Cutler, Esq.,
     Counsel to the President, The White House, Washington, DC, 
         USA.


     Judge Stephen Breyer's membership of the Corporation of Lloyds

       Dear Mr. Cutler: A mutual friend has suggested that it 
     might be helpful if I were to write to you in connection with 
     Judge Breyer's membership of Lloyds, particularly in a 
     relation to its relevance to the suitability of Judge 
     Breyer's nomination as a Justice of the U.S. Supreme Court. 
     This I am pleased to do.
       As a former member of the British diplomatic service, an 
     investment banker for fifteen years with two of the UK's most 
     prestigious merchant banks, an executive director of the Bank 
     of England in charge of international affairs for nine years 
     and currently a non-executive director of two insurance 
     companies, I have been acquainted in general terms with the 
     affairs and reputation of Lloyds for most of my working life. 
     Furthermore, my wife was an external name at Lloyds for much 
     the same period of time as Judge Breyer; as her financial 
     advisor I have taken a particular interest in the fortunes of 
     Lloyds over the past two decades, which includes both good 
     times and bad times.
       I understand that two assertions have been made in relation 
     to Judge Breyer's Lloyds membership: that it was an error of 
     judgement on his part for have joined Lloyds in the first 
     place, and to have joined the Merrett Syndicate 418 in 1985; 
     and that there must be doubt about the effect on Judge 
     Breyer's financial situation of the potential future losses 
     from Syndicate 418 since its 1985 underwriting year has 
     remained open.
       This letter addresses both those points.
       Over a great many years Lloyds has been regarded as a sound 
     and prudent investment. Losses have been recorded in the past 
     but generally over its long history Lloyds has returned good 
     profits.
       Many members of the British establishment have been and 
     still are members of Lloyds. It is a well-known and accepted 
     fact that membership of Lloyds is not inconsistent with the 
     highest judicial, political or other public office. A number 
     of judges and politicians continue to be members of Lloyds. 
     There was no reason in 1976 for anyone to believe that 
     joining Lloyds as an external name would not prove over the 
     long-term a sound a profitable investment.
       Likewise, in relation to joining Merrett Syndicate 418 in 
     1984 (in order to underwrite business in 1985), due diligence 
     would have shown that the syndicate was regarded as being 
     under experienced and competence management. It could not 
     have been viewed as careless or unwise to join it at that 
     time, whatever misfortunes may have befallen the syndicate 
     subsequently.
       Judge Breyer has acknowledged that this Syndicate 418 has 
     recorded heavy losses, which may increase as long as the 
     Syndicate's 1985 underwriting year remains open. 
     Nevertheless, Judge Breyer has stop-loss cover of 125,000 
     which, in my judgement, should afford him adequate protection 
     from future losses in this syndicate, as they have been 
     projected on a worst case basis by the most widely used and 
     reputable commentator on the affairs of run-off syndicates. 
     Incidentally, the taking of stop-loss cover in itself 
     demonstrates a prudent and responsible approach to the risk-
     taking that is an inevitable part of membership of Lloyds or 
     indeed of most other kinds of investment.
       I trust that the foregoing will be of assistance. Please do 
     not hesitate to let me know if I can be of further help.
           Yours sincerely,
                                                     A.D. Loehnis.
                                  ____



                               LeBoeuf, Lamb, Greene & MacRae,

                                      New York, NY, July 25, 1994.
     Re Judge Stephen G. Breyer.
     Lloyd Cutler, Esq.,
      White House Counsel, The White House, Washington, DC.
       Dear Mr. Cutler: You have asked whether Judge Breyer's 
     present stop loss coverage of $225,000 and his funds and 
     deposits at Lloyd's of $220,000 would be sufficient to cover 
     any further losses that Merrett's Syndicate 418 for 1985 year 
     of account might incur. I believe that it is highly unlikely 
     that his share of losses on that syndicate for that year of 
     account could exceed this combined total of $445,000. He had 
     a $25,000 share of the syndicate's total syndicate capacity 
     of approximately K140 million, 04 .000178. Thus, for Judge 
     Breyer to suffer any loss in excess of $445,000, the total 
     liability of the syndicate would need to exceed $2.5 billion. 
     Mr. Merrett indicates that total losses to date and reserves 
     for future losses for Judge Breyer's proportionate share of 
     the syndicate would be approximately $44,000. For these 
     losses to increase more than 10 times, or 1,000%, after the 
     syndicate has been in existence for more than nine years, 
     would be an unprecedented event in the history of the Lloyd's 
     market.
       Lloyd's is in the process of forming NewCo, a limited 
     liability reinsurance company, which will accept the 
     liabilities of all syndicates at Lloyd's for the 1985 and 
     prior years of account. It is planned that NewCo will be 
     operational no later than the end of 1995. It is not yet 
     known what, if any, additional premium, other than a 
     syndicate's present reserves, will be charged by NewCo. Once 
     NewCo is established, and Syndicate 418 has transferred its 
     liabilities for the 1985 account to it, Judge Breyer's 
     relationship with Lloyd's will be terminated.
       If you need anything further, please let me know.
           Sincerely yours,
                                               Sheila H. Marshall.
                                  ____



                            New York University School of Law,

                                       New York, NY, July 8, 1994.
     Lloyd Cutler, Esq.,
     Counsel to the President, White House Counsel's Office, 
         Washington, DC.
       Dear Mr. Cutler: You have asked me to answer the following 
     question: Did Judge Stephen Breyer violate section 455 of 
     title 28 of the United States Code (``Sec. 455'') by sitting 
     on eight cases involving CERCLA when he was a ``name'' in a 
     Lloyd's of London syndicate that insured against 
     environmental pollution among other risks?
       I have been asked to assume (a) that Judge Breyer did not 
     know and could not have known the identities of the 
     syndicate's insureds or the terms of their policies; (b) that 
     Judge Breyer did know or could have known that environmental 
     pollution was one of the risks against which the syndicate 
     insured; and (c) that Judge Breyer was exposed to a possible 
     loss of 25,000 pounds, had insurance against additional loss 
     of up $188,000, and that reasonable estimates are that his 
     actual loss will not exceed the insurance coverage though 
     they could.
       In answering your question, I am going to disregard the 
     assumption in (c) and assume instead that at the time Judge 
     Breyer sat on the eight CERCLA cases he had at least 25,000 
     of financial exposure and possibly more.
       I have reviewed the eight CERCLA cases. In my opinion, 
     Judge Breyer did not violate Sec. 455.
       A judge may not sit in a case in which the judge or certain 
     family members have a ``financial interest, however small'' 
     in a ``party'' or in the ``subject matter in controversy.'' 
     Sec. 455(b)(4), (d)(4). Judge Breyer had no financial 
     interest in the parties to the CERCLA case nor in their 
     subject matter. An example of the latter would be a judge's 
     stock ownership in a company that, though not a party to a 
     proceeding, was the subject of control between the actual 
     parties.
       Where the judge has an interest other than a ``financial 
     interest'' in a party or in the subject matter in 
     controversy, different rules apply. The judge is not then 
     disqualified ``however small'' his or her interest. The size 
     of the judge's ``other interest'' then matters: It must be 
     ``substantia[l].'' Sec. 455(b)(4).
       This difference recognizes two truths: the public is less 
     likely to suspect a judge's impartiality when the judge's 
     interest is other than in a party or the subject matter in 
     controversy; and if any ``other interest,'' even 
     insubstantial ones, could disqualify judges, the scope of 
     disqualification would be too broad with no public gain. 
     ``[W]hen an interest is not direct, but is remote, 
     contingent, or speculative, it is not the kind of interest 
     which reasonably brings into question a judge's 
     impartiality.'' In re Drexel Burnham Lambert Inc., 861 F.2d 
     1307, 1313 (2d Cir. 1988) (construing Sec. 455(a), discussed 
     below).
       Section 455(b)(4) and (b)(5)(iii) recognize the different 
     policies when a judge's interest is not in a ``party'' or in 
     the ``subject matter in controversy.'' These provisions 
     require recusal only when the judge (or certain family 
     members) have ``any other interest that could be 
     substantially affected by the outcome of the proceeding.'' 
     Sec. 455(b)(4).
       This different standard has two distinguishing elements. 
     First, the effect on the judge's interest must be 
     substantial. Second, the word ``could'' has been repeatedly 
     construed to require that the effect of ``the outcome of the 
     proceeding'' on the judge's interest must not be ``indirect'' 
     or ``speculative.'' In re Placid Oil Co., 802 F.2d 783, 786-
     77 (5th Cir. 1986). Construing Sec. 455(b)(4) in Pacid Oil, 
     the Court wrote: ``A remote, contingent, and speculative 
     interest is not a financial interest within the meaning of 
     the recusal statute . . . nor does it create a situation in 
     which a judge's impartiality might reasonably be 
     questioned.'' Id. at 787.
       The Court's last reference, to ``impartiality,'' brings us 
     to Sec. 455(a), which requires recusal when a judge's 
     ``Impartiality might reasonably be questioned.'' While 
     Sec. 455(a) and Sec. 455(b) overlap, they are not congruent. 
     Liteky v. United States, 114 S.Ct. 1147 (1994). Nevertheless, 
     here, I reach the same conclusion under both provisions.
       Placid Oil is an instructive case. It was brought against 
     23 banks, seeking recision of credit agreements and other 
     relief ``based on a number of alleged wrongful acts of the 
     Banks.'' Id. at 786. Plaintiffs sought recusal of the 
     district judge, who was alleged to have ``a large investment 
     in a Texas bank that may be affected by rulings in this 
     case.'' Plaintiffs argued that ``any rulings adverse to the 
     Banks will have a dramatic impact on the entire banking 
     industry and thus on [the judge's] investment as well,'' 
     thereby giving the judge a ``financial interest in the 
     litigation.'' Id. The Circuit rejected the recusal effort:
       ``We find no basis here for requiring recusal. We are 
     unwilling to adopt a rule requiring recusal in every case in 
     which a judge owns stock of a company in the same industry as 
     one of the parties to the case. * * *'' Id.
     This position was followed in Gas Utilities Co. of Alabama, 
     Inc. v. Southern Natural Gas Co., 996 F.2d 282 (11th Cir. 
     1993), cert. denied, 114 S.Ct. 687 (1994).
       I see no evidence that the decisions in Judge Breyer's 
     CERCLA cases ``could'' have a direct and substantial effect 
     on his interest in a syndicate that has insured against the 
     risk of liability for environmental pollution. Without 
     parsing every case here, I found their holdings to be 
     relatively narrow, some quite limited. For most of the cases, 
     it would be impossible to say how the holding could affect 
     Judge Breyer's own interests or those of the syndicate in 
     which he invested. For all of the cases, the Judge's interest 
     is '`not direct, but is remote, contingent, or speculative.'' 
     In re Drexel Burnham Lambert, supra at 1313.
       Given the twin requirements of substantiality and the 
     caselaw definition of ``could'' as used in Sec. 455(b), Judge 
     Breyer did not have to recuse himself in the eight CERCLA 
     cases. He did not violate Sec. 455.
           Sincerely yours,
                                                  Stephen Gillers.
                                  ____

         Geoffrey C. Hazard, Jr., Law School, University of 
           Pennsylvania,
                                  Philadelphia, PA, July 11, 1994.
     Hon. Lloyd N. Cutler,
     Special Counsel to the President, White House, Washington, 
         DC.
     Re: Judge Stephen Breyer.
       Dear Mr. Cutler: Your have asked for my opinion whether 
     Judge Stephen Breyer committed a violation of judicial ethics 
     in investing as a ``Lloyd Name'' in insurance underwriting 
     while being a federal judge. In my opinion there was no 
     violation of judicial ethics. In my view it was possibly 
     imprudent for a person who is a judge to have such an 
     investment, because of the potential for possible conflict of 
     interest and because of possible appearance of impropriety. 
     However, in light of the facts no conflict of interest or 
     appearance of conflict materialized. I understand that Judge 
     Breyer has divested from the investment so far as now can be 
     done and will completely terminate it when possible.
       1. I am Trustee Professor of Law, University of 
     Pennsylvania, and Sterling Professor of Law Emeritus, Yale 
     University. I am also Director of the American Law Institute. 
     I have been admitted to practice law since 1954 and am a 
     member of the bar of Connecticut and California. I am engaged 
     in an active consulting practice, primarily in the fields of 
     legal and judicial ethics, and have given opinions both 
     favorable and unfavorable to lawyers and judges. I was 
     Consultant and draftsman for the American Bar Association 
     Model Code of Judicial Conduct promulgated in 1972, on which 
     the rules of ethics governing federal judges are based. I 
     have also been Reporter and draftsman of the American Bar 
     Association Model Rules of Professional Conduct, promulgated 
     in 1983, and before that consultant to the project for the 
     ABA Model Conduct of Professional Responsibility. I am author 
     of several books and many articles on legal and judicial 
     ethics and write a monthly column on the subject.
       2. I am advised that Judge Breyer made an investment as a 
     ``Lloyd's Name'' some time in 1978. He has since terminated 
     that investment except for one underwriting, Merrett 418, 
     that remains open. He intends to terminate that commitment as 
     soon as legally permitted. I have further assumed the 
     accuracy of the description of a Lloyd's Name investment set 
     forth in the memorandum of July 3, 1994, Godfrey Hodgson. My 
     previous understanding of the operation of Lloyd's insurance, 
     although less specific than set forth in the memorandum, 
     corresponds to that description.
       3. I have assumed the following additional facts:
       (a) As a ``Name'' Judge Breyer did not have, and could not 
     have had, knowledge of the particular coverages underwritten 
     by the Merrett 418 syndicate. It would have been possible for 
     a Name to discover through inquiry that environmental 
     pollution as a category was one of the risks underwritten by 
     the syndicate.
       (b) Judge Breyer had ``stop-loss'' insurance against his 
     exposure as a Name, up to $188,000 beyond an initial loss of 
     25,000 pounds. This is in substance reinsurance from a third 
     source against the risk of actual liability.
       (c) A reasonable estimate of the potential loss for Judge 
     Breyer is approximately $114,000, well within the insurance 
     coverage described above. However, there is a theoretical 
     possibility that his losses could exceed that estimate.
       (d) The Merrett 418 syndicate normally would have closed at 
     the end of 1987. It remains open because of outstanding 
     liabilities to the syndicate that were not later adopted by 
     other syndicates. These outstanding liabilities include 
     environmental pollution and asbestos liability.
       4. I am advised that Judge Breyer as judge participated in 
     a number of cases that one way or another involved the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act (CERCLA), commonly known as the Superfund 
     statute. None of these cases involved Lloyd's as a party or 
     by name in any respect. None appear to have involved issues 
     that would have material or predictable impact on general 
     legal obligations under the Superfund legislation. Most of 
     the cases are fact-specific and all involve secondary or 
     procedural issues. I have assumed that the description of 
     these cases in the attached list is fair and accurate.
       5. In my opinion, Judge Breyer's participation in the 
     foregoing cases did not entail a violation of judicial 
     ethics. None of the cases involved Lloyd's as a party or as 
     having an interest disclosed in the litigation. None could 
     have had a material effect on Judge Breyer's financial 
     interests. None had a connection direct enough with Judge 
     Breyer as to create a basis on which his impartiality might 
     reasonably be questioned, as that term is used in Section 455 
     and in the Code of Judicial Ethics.
       6. There is a close analogy between the kind of investment 
     as a Name and an investment in a mutual fund. A mutual fund 
     is an investment that holds the securities of operating 
     business enterprises. Ownership in a mutual fund is 
     specifically excluded as a basis for imputed bias under 
     Section 455 and the Code of Judicial Ethics. This exclusion 
     was provided deliberately, in order to permit judges to have 
     investments that could avoid the inflation risk inherent in 
     owning Government bonds and other fixed income securities but 
     without entailing direct ownership in business enterprises. A 
     Names investment is similarly an undertaking in a venture 
     that in turn invests in the risks attending business 
     enterprise. Just as ownership in a mutual fund is not 
     ownership in the securities held by the fund, so in my 
     opinion, is investment as a Name not an assumption of direct 
     involvement in the risks covered by the particular Lloyd's 
     syndicate.
       7. In my opinion it could be regarded as imprudent for a 
     judge to invest as a Lloyd's Name, withstanding that no 
     violation of judicial ethics is involved. The business of 
     insurance is complex, sometimes controversial, and widely the 
     subject of public concern and suspicion. The insurance 
     industry is highly regulated and insurance company liability 
     often entails issues of public importance. In my opinion it 
     was therefore appropriate for Judge Breyer to have withdrawn 
     from that kind of investment so far as he could legally do 
     so, simply to avoid any question about the matter. That said, 
     I see nothing in his conduct that involves ethical 
     impropriety.
           Very truly yours,
                                           Geoffrey C. Hazard, Jr.
                                  ____



                                       Wiley, Rein & Fielding,

                                    Washington, DC, July 11, 1994.
     Lloyd Cutler, Esquire,
     Counsel to the President, White House Counsel's Office, 
         Washington, DC.
       Dear Mr. Cutler: You have asked us to evaluate whether any 
     case decided by Judge Stephen Breyer under the Comprehensive 
     Environmental Response, Compensation, and Liability Act 
     (``CERCLA''), 42 U.S.C. Sec. 9601 et seq., could have 
     substantially affected the financial interests of insurers. 
     We represent insurers extensively in connection with 
     insurance coverage matters arising under CERCLA. In addition 
     to representing individual insurers, we and our colleagues 
     represent the Insurance Environmental Litigation Association 
     (``IELA''), a trade group of 21 large property/casualty 
     insurers that appears as amicus curiae in numerous 
     environmental coverage cases at the appellate level.\1\ Mr. 
     Brunner has over a decade of direct experience in 
     representing the interests of insurers in disputes arising 
     under CERCLA. Ms. Sawtelle, in addition to representing 
     insurers, has an extensive background in CERCLA and 
     environmental matters generally, having served as an EPA 
     official (as Special Assistant to the Director, Office of 
     Solid Waste, from 1985 to 1987) with responsibility in this 
     area, and having represented numerous potentially responsible 
     parties (``PRPs'') in private practice since 1981. As a 
     consequence, we are able to provide you with a realistic 
     appraisal of the significance of CERCLA cases for insurers 
     generally and Lloyds of London syndicates specifically, based 
     on a great deal of experience evaluating CERCLA matters for 
     insurers and others.
---------------------------------------------------------------------------
     \1\Footnotes at end of article.
---------------------------------------------------------------------------
       We have reviewed all eight cases in which Judge Breyer has 
     passed on CERCLA issues.\2\ In our opinion, none of these 
     cases had a material or predictable financial impact on 
     insurers generally or on Lloyds syndicates in particular. Any 
     consequences for insurers were highly speculative and 
     dependent on many independent intervening factors. Any 
     conceivable impact on the financial interests of insurers 
     from these cases resulted only from the court assuring that 
     PRPs received proper procedural protections, or that the 
     statute's provisions were applied properly, before parties 
     were held liable for costs that might possibly be determined 
     to be insured by some insurer. None of the cases determined 
     the obligation of any insurer nor of any PRP for which an 
     insurer might be liable. In real world terms, Judge Breyer's 
     financial interest in these cases as a result of his status 
     as a Lloyd's investor was probably more attenuated than his 
     interest as a federal taxpayer in numerous cases involving 
     financial claims against the Federal Government. In both 
     circumstances, the interest is so diluted, so contingent and 
     so indirect as to be of no consequence.
       Of the eight CERCLA cases on which Judge Breyer has sat, 
     four did not involve even potentially insurable interests of 
     PRPs. Maine v. Department of the Navy, 973 F.2d 1007 (1st 
     Cir. 1992), involved a claim for civil penalties sought by 
     Maine against the (uninsured) Federal Government. Similarly, 
     Reardon v. United States, 947 F.2d 1509 (1st Cir. 1991) (en 
     banc), involved the constitutionality of CERCLA's 
     procedures for attaching liens to real property and in no 
     way addresses the extent of financial liabilities under 
     CERCLA. All Regions Chemical Laboratories v. EPA, 932 F.2d 
     73 (1st Cir. 1991), concerned the imposition of a civil 
     penalty on a chemical company for failure to report a 
     chemical release; such penalties clearly are uninsured. In 
     much the same vein, Johnson v. SCA Disposal Services, 
     Inc., 931 F.2d 970 (1st Cir. 1991), applied the doctrine 
     of res judicata, precluding relitigation of matters 
     already determined by a court, to a case that happened to 
     involve CERCLA claims but without any distinctive 
     precedential significance for CERCLA cases.
       Only four cases on which Judge Breyer has sat have even 
     considered the rights or obligations of potentially insured 
     PRPs under CERCLA. In each instance, the significance for 
     insurers has been, at most, highly indirect. United States v. 
     Kayser-Roth Corp., 910 F.2d 24 (1st Cir. 1990), cert. denied, 
     498 U.S. 1084 (1991), addressing the potential liability of a 
     parent company for its subsidiary's waste disposal practices, 
     is likely irrelevant to insurers in most instances but, if 
     not, could be either ``good'' or ``bad'' for a particular 
     insurer, depending on the circumstances of the later case. 
     Indeed, the likelihood of a perceptible impact on insurers is 
     both speculative and remote.
       Similarly, the potential impact on the insurance industry 
     of the issues in United States v. Ottati & Goss, Inc., 900 
     F.2d 429 (1st Cir. 1990), was de minimis. The case 
     principally involved whether a court must, in an injunctive 
     relief context, adopt any cleanup remedy selected by EPA 
     unless it found that selection to be arbitrary or capricious 
     or, alternately, whether it may itself decide what the remedy 
     should be. Judge Breyer, writing for the unanimous panel, 
     upheld the decision of the court below that the court may 
     fashion the remedy. This holding did not make any 
     determination of a PRP's obligations but merely prescribed 
     the procedure and degree of deference due to certain 
     preliminary EPA actions. There was only an attenuated impact 
     on PRPs and an even more attenuated connection to insurers.
       Waterville Industries Inc. v. Finance Authority of Maine, 
     984 F.2d 540 (1st Cir. 1993), involved the application of 
     CERCLA's so-called ``secured creditor exemption.'' Judge 
     Breyer joined in the court's unanimous opinion holding that 
     this provision--which exempts from the class of liable 
     ``owners or operators'' those who, without participating in 
     the management of a contaminated facility, hold indicia of 
     ownership primarily to protect a security interest--applied 
     to a particular sale-and-leaseback arrangement. The court's 
     opinion, which was consistent with a number of other courts' 
     rulings, was highly fact-specific and thus not likely to have 
     a material or predictable impact on the insurance industry. 
     Moreover, this dispute involved private parties only, each of 
     whom is no more likely than the other to have insurance.
       Finally, in Dedham Water Co. v. Cumberland Farms Dairy, 
     Inc., 889 F.2d 1146 (1st Cir. 1989), Judge Breyer joined in 
     the court's unanimous decision that CERCLA liability arises 
     when the release of hazardous substances from the defendant's 
     facility cause the plaintiff to incur response costs, rather 
     than when the releases cause contamination on the plaintiff's 
     property. This case did not present an issue that would have 
     a material impact on the insurance industry's CERCLA 
     obligations because in a wholly private dispute such as this, 
     either or both sides might have insurance. (In a subsequent 
     opinion in the Dedham case, Judge Breyer dissented from the 
     majority regarding whether a new trial was required; this 
     opinion was unrelated to the provisions of CERCLA. See In re 
     Dedham Water Co., 901 F.2d 3 (1st Cir. 1990).)
       In sum, then, our review makes clear that no case in which 
     Judge Breyer participated had any substantial or predictable 
     effect on his interest as an investor in Lloyd's of London or 
     on the financial position of insurers generally.
           Sincerely,
     Thomas W. Brunner,
     Susan D. Sawtelle.


                               footnotes

     \1\The views expressed herein are our own and are not stated 
     on behalf of IELA or any other client of our law firm. We do 
     not represent any syndicate participating in Lloyds of 
     London.
     \2\Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 
     1146 (1st Cir. 1989); United States v. Ottati & Goss, Inc., 
     900 F.2d 429 (1st Cir. 1990); United States v. Kayser-Roth 
     Corp., 910 F.2d 24 (1st Cir. 1990), cert. denied,498 U.S. 
     1084 (1991); Johnson v. SCA Disposal Services, Inc., 931 F.2d 
     970 (1st Cir. 1991); All Regions Chem. Labs. Inc. v. United 
     States EPA, 932 F.2d 73 (1st Cir. 1991); Reardon v. United 
     States, 947 F.2d 1509 (1st Cir. 1991); Maine v. Department of 
     Navy, 973 F.2d 1007 (1st Cir. 1992); Waterville Indus., Inc. 
     v. Finance Auth. of Me., 984 F.2d 549 (1st Cir. 1993).
                                  ____



                                       Lewis and Roca Lawyers,

                                                    July 12, 1994.
     Lloyd N. Cutler, Esq.
     Counsel to the President, The White House Counsel's Office, 
         Washington, DC.
     Re: Judge Stephen G. Breyer.
       Dear Mr. Cutler: In connection with the pending hearings on 
     Judge Stephen G. Breyer for the Supreme Court, I submit the 
     attached statement requested by you on a problem of 
     disqualification of judges.
           Yours very truly,
                                                    John P. Frank.
       Enclosure.
                                  ____


            Judge Stephen G. Breyer Disqualification Matter


                    i. identification--john p. frank

       Mr. Frank is a partner at the Law firm of Lewis and Roca, 
     Phoenix, Arizona, who has been heavily involved in 
     disqualification matters over the decades. He is the author 
     of the seminal article on that subject in the 1947 Yale Law 
     Journal. He was subpoenaed by the Senate Judiciary Committee 
     to testify as an expert on disqualification in connection 
     with the nomination of Judge Haynsworth to the Supreme Court 
     in 1969. In the aftermath of that episode, the Congress took 
     to rewrite the Disqualification Act, creating the present 
     statute, 28 U.S.C. Sec. 455. Simultaneously, a commission 
     under the chairmanship of Chief Justice Roger Traynor of 
     California for the American Bar Association was rewriting its 
     canon of judicial ethics. Mr. Frank became, informally, 
     Senate representative in negotiations with the ABA Traynor 
     Commission to achieve both a canon and a new statute which 
     would be nearly the same as possible, Senator Bayh and Mr. 
     Frank appeared before the Traynor Commission. Mr. Frank 
     worked out a mutually satisfactory canon/bill with Professor 
     Wayne Thode of Utah, reporter for the Traynor Commission. The 
     canon was then adopted by the Traynor Commission and 
     essentially put into bill form by Senators Bayh and Hollings, 
     major witnesses for the bill on the Senate side were Senators 
     Bayh and Hollings, and Mr. Frank. On the House side, Judge 
     Traynor and Mr. Frank jointly lobbied the measure through. 
     Mr. Frank is intimately acquainted with the legislative 
     history and well acquainted with subsequent developments.
       The foregoing outline is my final conclusion on this 
     subject. I am aided not merely by numerous attorneys in my 
     own office, but also by Gary Fontana, a leading California 
     insurance law specialist of the firm of Thelan, Marrin, 
     Johnson & Bridges of San Francisco.


                               ii. issue

       In his capacity as an investor, Judge Stephen G. Breyer has 
     been a ``Name'' on various Lloyds syndicates up to a maximum 
     of 15 at any one time over an 11-year period from 1978 
     through 1988. This means, essentially, that he is one of a 
     number of investors who have put their credit behind the 
     syndicates to guarantee that claims arising under certain 
     insurance policies directly written or reinsured by the 
     syndicates are paid. If the premiums on the policies and 
     the related investment income outrun the losses, expenses 
     and reinsurance, there is payment to the Names. If there 
     is a shortfall, the Names must make up the difference. For 
     an extensive description of the Lloyds system, see Guide 
     to the London Insurance Market, BNA 1988, and particularly 
     chapter 3 on underwriting syndicates and agencies. As the 
     full text shows, this is a highly regulated enterprises, a 
     matter of consequence in relation to views of Chief 
     Justice Traynor expressed below.
       The syndicates commonly reinsure North American companies 
     against a vast number of hazards. Among these probably are 
     certain hazards arising in connection with pollution which 
     may relate to the ``superfund,'' a financing mechanism of the 
     United States for pollution clean-up. A question has been 
     raised as to whether, in any of the various cases in which 
     Judge Breyer has sat involving pollution, he may have been 
     disqualified. The identical question could arise in 
     connection with any number of other cases in which Judge 
     Breyer has sat because the syndicates have infinitely more 
     coverage than pollution. The selectivity of the current 
     interest is probably due to nothing but the colorful nature 
     of pollution or the failure of some inquiring reporter to see 
     the problem whole.
       A very significant factor is that the Lloyds syndicates are 
     not merely insurers or re-insurers. They are also investment 
     companies and much of their revenue comes from investments in 
     securities.


                              iii. answer

       Should Judge Breyer have disqualified in any pollution 
     cases in which he participated because of his Name status?
       Answer: No.


      iv. disqualification standards as applied to this situation

                       A. Party Disqualification

       Under the statute, if a judge has an interest in a party, 
     no matter how small, he must disqualify. Knowledge is 
     immaterial; a judge is expressly required to have such 
     knowledge so that he can meet this responsibility. Since the 
     statute, judges have had to narrow their portfolios; ``I 
     didn't know'' is not even relevant.
       We may put this strict criteria of disqualification aside 
     because neither Lloyds nor any of the syndicates is a party 
     to any of these cases. This is of vital importance because 
     this is the one strict liability disqualification 
     criterion in this situation.

                      B. The common fund exception

       Congress in Sec. 455 did not mean to preclude judges from 
     investing; this was fully recognized both in Sec. 455 and the 
     cannons; H.R. Rep. 1453, 93d Cong., 1st Sess. at 7 (Oct. 9, 
     1974). Judges have a range of income expectations and an 
     investment is quite appropriate. Investment is restricted 
     only where it would lead to needless perils of 
     disqualification.
       In that spirit, Sec. 455(d)(4)(i) recognizes that judges 
     may invest in funds which are themselves investment funds and 
     while the judge cannot sit in any case which involves the 
     fund, he is exempted from a duty of disqualification in 
     matters involving securities of the fund unless he 
     participates in the management of the fund, Sen. Hrg. 1973 at 
     97, which Judge Breyer did not do. ``Investments in such 
     funds should be available to judges,'' id. This section was 
     intended to create ``a way for judges to hold securities 
     without needing to make fine calculations of the effect of a 
     given suit on their wealth,'' New York Develop. Corp. v. 
     Hart, 796 F2d 976, 980 (7th Cir. 1986). As Chief Justice 
     Traynor said of this exception, it is ``because of the 
     impossibility of keeping track of the portfolio of such a 
     fund,'' Sen. Hrg. 1973, House of Rep. Subcomm. Jud. Com. on 
     S. 1064, May 24, 1974 (hereafter H.R. Hrg. 1974), p. 16.
       The relevant section is as follows:
       ``(i) Ownership is a mutual or common investment fund that 
     holds securities is not a `financial interest' in such 
     securities unless the judge participates in the management of 
     the fund;''
       1. A large Lloyds syndicate is a ``common investment 
     fund.'' There is a definition in Reg. Sec. 230.132 of 
     ``common trust fund,'' which is a particular type of bank 
     security specifically exempted from the Securities Act of 
     1933 pursuant to Section 3(a)(2). The only useful portion of 
     that definition is ``maintained exclusively for the 
     collective investment and reinvestment of monies contributed 
     thereto by one or more [bank] members . . .'' A ``common 
     enterprise'' is one of the four elements of an ``investment 
     contract'' as set forth in the Howey case:
       ``[A]n investment contract for purposes of the Securities 
     Act means a contract, transaction or scheme whereby a 
     person [1] invests his money, [2] in a common enterprise, 
     and [3] is led to expect profits, [4] solely from the 
     efforts of a promoter or third party . . .''
     SEC. v. W.J. Howey Co., 328 U.S. 293, 298 (1946). The common 
     enterprise requirement is usually satisfied by a number of 
     investors who have a similar stake in the profitability of 
     the venture.
       2. While the precise form of common fund involved here was 
     not contemplated in the statute, functionally a Lloyds 
     investment is the same as any other common fund investment. 
     It is an investment in a common fund in which the judge has 
     no practical way of knowing on what he may make a return.


                  v. the non-party exception criteria

       Under Sec. 455(d)(4), ``financial interest'' covers 
     ``ownership of a legal or equitable interest, however small'' 
     and then moves on to an additional thing, ``or a relationship 
     as director, advisor, or other active participant in the 
     affairs of a party.'' This, too, is under the ``however 
     small'' criterion, Sen. Hrg. 1973 at 115. This disqualifies 
     the judge if he is a creditor, debtor, or supplier of a party 
     if he will be affected by the result; but this only applies 
     to a party, id. 115. A different standard is applied under 
     Sec. 455(d)(4)(iii) to any ``proprietary interest'' similar 
     to mutual insurance or mutual savings. Here the disqualifying 
     interest must be ``substantial''; the ``however small'' 
     standard is inapplicable. There is more latitude here than in 
     the other relationships and these can be usefully described 
     as the ``non-party'' involvement of the judge. I have 
     elaborated on this topic in Commentary, 1972 Utah Law Review 
     Sec. 77, which has reflected the views of Professor Thode of 
     the Utah Law School, reporter on the canon, and which is 
     referenced in the legislative history of Sec. 455, Sen. Hrg. 
     1973 at 113.
       This covers the relationship of the judge not in terms of 
     his direct financial interest in a party (as to which his 
     disqualification is absolute and unawareness is not 
     relevant)\1\ but rather covers non-party interest. For 
     classic illustration, if the home of a judge is in an 
     irrigation district and if he is passing on the validity of 
     the charter of the irrigation district itself, the answer to 
     that * * *.

                           *   *   *   *   *

---------------------------------------------------------------------------
     \1\See, In re Cement Antitrust Litigation (MDL No. 296), 688 
     F. 2d 1297, 1313 (9th Cir. 1982) (judge was disqualified when 
     his wife had a minor investment in a party, ``After five 
     years of litigation, a multi-million dollar lawsuit of major 
     national importance, with over 200,000 class plaintiffs, 
     grinds to a halt over Mrs. Muecke's $29.70.'').
---------------------------------------------------------------------------
       In Department of Energy v. Brimmer, 673 F.2d 1287 (Temp. 
     Emerg. Ct. of Apps. 1982) the court held a judge hearing a 
     case involving an Entitlement Program, who had stock 
     ownership in other Entitlement Programs, was not 
     disqualified. In reaching this conclusion the court used a 
     two step analysis; 1) did the judge have a financial interest 
     in the subject matter in controversy, and, if not, 2) did the 
     judge have some other interest that could be substantially 
     affected by the outcome of the litigation.
       The court held the judge did not have a financial interest 
     in the subject matter of the litigation, with a brief 
     analysis:
       ``The use of the term `subject matter' suggests that this 
     provision of the statute will be most significant in in rem 
     proceedings. See E. Wayne Thode, Reporters Notes to A.B.A. 
     Code of Judicial Conduct, 56 (1973). We hold that the judge 
     does not have a direct economic or financial interest in the 
     outcome of the case, and thus could hear it without 
     contravening the constitutional due process.''
       Here is where Judge Breyer drops completely out of the 
     disqualification circle. In the financial relationship of any 
     of his cases to the totality of his dividend potential, his 
     Name is utterly trivial and, in any case, he not only does 
     not know that a litigant is insured with the syndicates but, 
     realistically, has no practical way of finding out. As the 
     legislative history clearly shows, it is intended in these 
     situations, generally speaking, that for a judge not to be 
     kept currently informed is an affirmative virtue, or else the 
     persons controlling the investments, as in a common fund 
     situation, would have the power to disqualify a judge by 
     making an investment and forcing the knowledge on the judge. 
     This was deliberately considered in the legislative history 
     as a hazard and was guarded against. An opinion, closely 
     analogous, shared by several district judges, is whether 
     Alaskan district judges must disqualify in cases claiming 
     ``amounts for the Alaska Permanent Fund, from which dividends 
     can flow to, among others, district judges. Held, no 
     disqualification; the amounts are too remote and speculative, 
     Exxon Corp. v. Heinze, 792 F. Supp. 77 (D. Ala. 1992). For 
     perhaps the leading case that a judge should not disqualify 
     for a contingent interest where he is not a party but, 
     speculatively, might get a small dividend some day, see In re 
     Va. Elec. Power Co., 539 F.2d 357 (4th Cir. 1976).


                     VI. Appearance Of Impropriety

       This leaves the generalized provision of Sec. 455(a) that a 
     judge shall disqualify where ``his impartiality might 
     reasonably be questioned.'' This is commonly caught up in the 
     phrase which has a long history, pre-Sec. 455 ABA and U.S. 
     Supreme Court opinions. The amorphous quality of the phase 
     makes it hard to deal with decisively. However, the phrase 
     has gained technical meaning in both the legislative 
     history and the cases; categorically it does not mean that 
     pointing a finger and expressing dismay is enough. 
     Moreover, when, as developed above, certain types of 
     investment are expressly allowed under the statute, it 
     will be difficult to make them ``improper.''
       The 1974 Act eliminated the ``duty to sit,'' permitting the 
     judge to disqualify where his impartiality may reasonably be 
     questioned. Both Justice Traynor and Mr. Frank advised the 
     Senate committee that this disqualification was to be 
     determined by ``what the traditions and practice have been,'' 
     Sen. Hrg. 1973 at 15. These do not authorize disqualification 
     for ``remote, contingent, or speculative interest,'' or 
     ``indirect and attenuated interest''; In re Drexel Burnham 
     Lambert Inc., 861 F.2d 1307, reh'g den. 869 F.2d 116, cert. 
     den. 490 U.S. 1102 (1988); TV Communications Network, Inc. v. 
     ESPN, Inc., 767 F. Supp. 1077 (D. Colo. 1991).
       It is here that the common fund exception has great bearing 
     by analogy. Such an investment involves the same factors 
     which motivated the common fund exception. That is to say, 
     the statutes mean to preserve the right of judges to invest 
     and clearly except from the rigorous disqualification 
     standards investments in common funds where the judge has no 
     effective way of knowing precisely what interests may be 
     within the scope of the investments. Functionally an 
     investment in Lloyds is the same as an investment in any 
     common fund with general holdings. In these circumstances, 
     there cannot be an ``appearance of impropriety'' in an 
     investment which is just the same, functionally, as those 
     expressly protected.


      vii. the disqualification claim, if accepted, would produce 
                  unreasonably and unintended results

       As noted in the preliminary observations to this 
     memorandum, the concern here is grossly excessive. The 
     syndicates have a broad reach. The returns to the Names could 
     be affected by numerous other matters beside pollution 
     claims. For a comprehensive discussion of the proposition 
     that there is no ground for disqualification because a case 
     may affect general rules of law, see New York City Develop. 
     Corp. v. Hart, 796 F.2d 976, 979 (7th Cir. 1986) (``Almost 
     every judge will have some remote interest of this sort.'')
       Almost any case relating to the business community could 
     relate to Lloyds in some remote way, and any number of cases 
     can relate to other reaches of the business community. Even 
     the criminal cases, in at least some instances, can have 
     significant business fallout, as for example, the RICO cases. 
     To say that Judge Breyer should have recused himself from all 
     pollution cases would logically be to say that judges 
     should not invest in a business generally.
       I reiterate that neither the canon nor Sec. 455 meant to 
     preclude investment by judges. The focus on the pollution 
     cases is excessively sharp because, if there were 
     disqualification here, there would necessarily be 
     disqualification as to too many other aspects of investment. 
     This would defeat the purpose of the canons and the statute.


                            VIII. Conclusion

       Judge Breyer properly did not disqualify in the pollution 
     cases which came before him.
                                                    John P. Frank.
                                  ____

                                                    July 13, 1994.
     Hon. Joseph R. Biden,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Office Building, Washington, DC.
       Dear Senator Biden: As one who has worked in the field of 
     lawyers' and judges' ethics for almost three decades, I write 
     to oppose the confirmation of Chief Judge Stephen Breyer as a 
     member of the Supreme Court. My opposition is based upon 
     Judge Breyer's violation of the Federal Disqualification 
     Statute, 28 U.S.C. Sec. 455.
       We have heard much in recent years about a ``litmus test'' 
     for judges. The reference has been to the nominees' positions 
     on substantive issues, and the test has fluctuated with the 
     politics of the moment. If there is one test that should be 
     constant, however, it is that the record of a nominee for 
     judicial office should not be tainted by a serious violation 
     of judicial ethics. Judge Breyer fails that test.


                the disqualification statute (Sec. 455)

       The Federal Disqualification Statute (Sec. 455) was enacted 
     by Congress to ensure respect for the integrity of the 
     federal judiciary. Discussing the statute in the Liljeberg 
     case, the Supreme Court said that ``We must continuously bear 
     in mind that to perform its high function in the best way, 
     `justice must satisfy the appearance of justice.'''\1\
---------------------------------------------------------------------------
     Footnotes at end of article.
---------------------------------------------------------------------------
       The problem, the Supreme Court explained, is that ``people 
     who have not served on the bench are often all too willing 
     to indulge suspicions and doubts concerning the integrity 
     of judges.''\2\ Section 455(a) was therefore adopted to 
     ``promote confidence in the judiciary'' and to eliminate 
     those ``suspicions and doubts.''
       Accordingly, Sec. 455(a) expressly requires that every 
     federal judge ``shall'' disqualify himself from any case in 
     which his impartiality ``might'' reasonably be 
     ``questioned.''\3\ This statutory language is intentionally 
     broad, requiring the judge to avoid the ``appearance of 
     impropriety whenever possible.''\4\
       Writing for the Supreme Court just this year, Justice 
     Scalia said that Sec. 455(a) covers all forms of partiality, 
     and ``require[s] them all to be evaluated on an objective 
     basis, so that what matters is not the reality of 
     [partiality] but its appearance.''\5\ And Justice Scalia 
     added: ``Quite simply and quite universally, recusal was 
     required whenever `impartiality might reasonably be 
     questioned.'''\6\
       This objective standard--which is to be applied 
     ``universally'' and ``whenever possible,''--means that the 
     judge cannot remain in a case on the ground that he, 
     personally, is a person of integrity who would not be 
     affected by a personal financial concern. Rather, the 
     question is whether the ``average judge'' would be offered a 
     ``possible temptation'' not to ``hold the balance nice, clear 
     and true.''\7\
       That last quotation goes back to cases decided even before 
     Sec. 455 was enacted--cases like Tumey, Murchison, and 
     Lavoie.\8\ Those cases hold that constitutional due process 
     requires the judge to disqualify himself unless his interest 
     is ``so remote, trifling, and insignificant'' as to be 
     ``incapable of affecting'' an individual's judgment.\9\


                judge breyer's violation of the statute.

       I have quoted at some length from controlling Supreme Court 
     cases like Liteky, Liljeberg, Tumey, Murchison, and Lavoie, 
     because, so far, they have been virtually ignored in these 
     hearings. Neither Professor Stephen Gillers nor Professor 
     Geoffrey Hazard has discussed these cases in their letters to 
     the Committee in which they conclude that Judge Breyer did 
     not violate the Statute.\10\
       Judge Breyer was a member, or Name, in the Lloyd's Merrett 
     syndicate 418 in 1985, insuring asbestos and pollution 
     losses.\11\ His exposure to liability continues to this day. 
     As of 1993, the total losses on that account were $245.6 
     million. Other Names have had their fortunes wiped out in 
     total Lloyd's liabilities approaching $12 billion. For years, 
     therefore, the Names have been understandably jittery.
       The New York Times has described Judge Breyer's membership 
     in Lloyd's as ``A Tricky Investment.''\12\ Although Judge 
     Breyer has assured this Committee that he will get out of his 
     membership as soon as possible, this is a questionable 
     pledge. He himself has testified that he has been trying to 
     extricate himself for years. And according to Richard 
     Rosenblatt, who heads a group of hundreds of American Names 
     who are ``afraid of being wiped out,'' it would cost Judge 
     Breyer more that $1 million to insure himself against his 
     personal share of his syndicate's losses.\13\ Even then, he 
     would remain liable if his insurer could not pay.\14\
       Judge Breyer and the White House have assured this 
     Committee and the public that Judge Breyer's reasonably 
     anticipated liability is negligible. And the ethics experts 
     who have ``cleared'' Judge Breyer have based their opinions 
     on just such misleading assumptions. As Professor Hazard 
     says, he was told to assume that Judge Breyer's possible 
     losses are well within ``stop-loss'' insurance coverage that 
     the Judge already has. For similar reasons, Professor Gillers 
     has commented that his own opinion is ``rather narrow.''\15\
       But consider Mr. Rosenblatt's estimate that insurance 
     coverage of Judge Breyer's liability would cost more than $1 
     million. That reflects the calculation of hard-headed 
     actuaries, not overly optimistic politicians eager to 
     minimize the true dimensions of the Judge's difficulties.
       Having said that, let me emphasize that my opinion is not 
     dependent upon the precise size of Judge Breyer's 
     liability.\16\ As Professor Hazard said in his opinion, the 
     business of insurance is complex, sometimes controversial, 
     and ``widely the subject of public concern and suspicion.'' 
     Unfortunately, Professor Hazard did not recognize that his 
     own description of Judge Breyer's position as an insurer 
     echoes the Supreme Court's description of the purpose of 
     Sec. 455--to avoid public ``suspicion and doubts.'' 
     Predictably, and properly, ``public concern and suspicion'' 
     have been focused on the integrity of the judiciary because 
     of Judge Breyer's failure to disqualify himself when the 
     Statute required him to do so.
       As the White House has admitted, Judge Breyer ``knew'' or 
     ``could have known'' that environmental pollution was one of 
     the risks he was insuring as a Name. (In fact, he was 
     notified of this by his syndicate.) But, they contend, he did 
     not know precisely which of his cases involved those risks. 
     In effect, they argue that Judge Breyer could not know for 
     sure whether a particular pollution defendant standing before 
     him was carrying the Judge's blank check in his pocket.
       But under Sec. 455(c) of the Disqualification Statute, the 
     Judge had an absolute responsibility to ``inform himself 
     about his personal . . . financial interests.''\17\ 
     (Professors Gillers and Hazard ignore this requirement in 
     their opinion letters.) Thus, the bizarre defense of Judge 
     Breyer is that he violated his statutory duty to know the 
     details of this personal financial interest, and therefore he 
     didn't violate his statutory duty to disqualify himself.
       In fact, Judge Breyer did violate the statute in failing to 
     disqualify himself. Take, for example, United States v. 
     Ottati & Goss, Inc.\18\ Two years after Liljeberg explained 
     the broad scope of Sec. 455(a), Judge Breyer failed to 
     disqualify himself from Ottati & Goss--even though the case 
     involved the Environmental Protection Agency's powers to 
     impose liability on polluters like those the Judge knew he 
     was insuring.
       In Ottati & Goss, the issue was whether the EPA could 
     impose remedies against polluters, subject to judicial 
     revision only on a finding that the EPA had arbitrarily and 
     capriciously abused its powers. Lower court decisions were 
     split on the issue. A decision by the First Circuit would be 
     on important precedent.
       Judge Breyer expressly recognized this in his opinion in 
     Ottati & Goss, saying that the case raised a question with 
     ``implications for other cases as well as this one.'' And he 
     said again: ``The EPA's * * * argument [has] implications 
     beyond the confines of this case.''
       That was enough to require that Judge Breyer disqualify 
     himself. In effect, he was in the position of deciding his 
     own case, or, at least, of setting a precedent that could 
     affect his own liability.
       How the Judge ultimately decided the case has no effect on 
     his duty to disqualify himself. His decision in Ottati & Goss 
     compounds the appearance of impropriety that the Statute 
     forbids, because the Judge wrote an opinion weakening the 
     power of the EPA to impose liability on polluters. And his 
     opinion, predictably, has been influential, causing the EPA 
     to change its own regulations.
       Similarly, Judge Breyer participated in Reardon v. United 
     States,\19\ where the First Circuit again made it more 
     difficult for the EPA to impose liability on Polluters. In 
     Reardon, the EPA had removed tons of contaminated soil and 
     put a lien on the property to secure payment of its costs. 
     The loss represented by that lien is the same kind of loss 
     that Judge Breyer was liable to reimburse as an insurer. 
     And the decision held that the EPA did not have the power 
     to impose the lien.
       Is it not clear that Judge Breyer's impartiality ``might'' 
     reasonably be ``questioned'' in Ottati & Goss and in Reardon? 
     Would not his participation cause ``suspicions and doubts'' 
     about the integrity of judges? In that not precisely the 
     problem that the Congress intended to resolve with 
     Sec. 455(a) of the Disqualification Statute?
       One contention put forth by the White House is that Judge 
     Breyer was not asked to disqualify himself by a litigant. 
     That is irrelevant. The Statute does not permit a judge to 
     wait to see whether a litigant has smoked out his interest 
     and makes a motion for disqualification. Rather, the Statute 
     is ``self-executing,'' requiring the judge to take the 
     initiative. As Justice Scalia said for a unanimous Court in 
     Liteky, the Statute ``placed the obligation to identify the 
     existence of those grounds upon the judge himself, rather 
     than requiring recusal only in response to a party 
     affidavit.''\20\
       Another contention is that the Judge's membership in 
     Lloyd's is ``analogous'' to being an investor in a mutual 
     fund, and therefore is exempt from the statute under 
     Sec. 455(d)(4). There are two important differences between 
     being a name in Lloyd's and being an investor in a mutual 
     fund. One is that mutual funds are typically highly diverse. 
     But Lloyd's is solely involved in insurance, and the Judge 
     knew that one or more of his insurance liabilities related to 
     environmental pollution. Another major difference is that an 
     investor in a mutual fund cannot lose more than the principle 
     invested. In Lloyd's, on the contrary, one's entire fortune 
     is at risk, as hundreds of Names have found to their dismay 
     in recent years.
       It has also been argued that Sec. 455(a) is not the right 
     section to apply. The contention is that the correct section 
     is Sec. 455(b)(4), which (on one reading) requires that the 
     judge's interest ``could'' be ``substantially affected by the 
     outcome of the proceeding.'' There are three answers to that 
     argument.
       First, those who make that contention have been assuming, 
     contrary to fact, that the Judge's potential liability is 
     negligible. (See discussion above).
       Second, Sec. 455(b) does not require that the Judge's 
     interest be ``substantial'' if it is an interest in the 
     ``subject matter in controversy.'' In that event, the judge 
     must disqualify himself ``however small'' his interest might 
     be. Sec. 455(b)(4). And some read the phrase ``subject matter 
     in controversy'' to include the remedy--such as the lien in 
     Reardon--if that is what the litigation is about. One could 
     similarly say that the subject matter of the controversy in 
     Ottati & Goss was the enforcement powers of the EPA. Thus, 
     Judge Breyer was required to disqualify himself under 
     Sec. 455(b)(4) in both those cases ``however small'' his 
     financial interest in the outcome might be.
       Third, the ``substantially affected'' provision of 
     Sec. 455(b)(4) does not preclude application of the basic 
     provision, Sec. 455(a). and Sec. 455(a) can require 
     disqualification when the Judge's impartiality ``might 
     reasonably be questioned'' even when the amount of financial 
     interest is not in fact substantial. In Liljeberg, for 
     example, the Supreme Court relied principally upon 
     Sec. 455(a) even while recognizing that Sec. 455(b)(4) also 
     applied.
       Ignoring the Supreme Court cases in point, Professor 
     Gillers has placed his primary reliance on In re Placid Oil 
     Company.\21\ But Placid Oil is obsolete, having been decided 
     two years before Liljeberg (discussed above). With no 
     analysis whatsoever, the appeals court in Placid Oil said 
     in a single conclusory sentence that the judge's interest 
     in that case did not create a situation in which a judge's 
     impartiality might reasonably be questioned. The court 
     also said that the judge's interest at issue was, in fact, 
     ``remote, contingent, and speculative''--unlike Judge 
     Breyer's position in Ottati & Goss and Reardon. Professor 
     Gillers' reliance upon the obsolete and limited holding in 
     Placid Oil, while ignoring Liljeberg and all of the other 
     Supreme Court authorities, renders his opinion highly 
     questionable.
       The court in Placid Oil also says that a judge is not 
     automatically disqualified if he has any stock at all in a 
     company that is in the same industry as a litigant. That 
     certainly remains true. But Judge Breyer has much more than a 
     minor interest in a company in the same industry. He is an 
     insurer with a potential liability that he cannot avoid for 
     less than $1,000,000.
       In addition, Judge Breyer, with his wife, holds investments 
     of over $250,000 in chemical and pharmaceutical companies. 
     Moody's Investors Service says that these are ``among the 
     highest risks'' for Superfund liability.\22\
       Judge Breyer has also held significant long-term 
     investments in several liability insurance carriers that, 
     according to the Financial Times, have been ``haunted by the 
     prospect of big claims for environmental liability,'' 
     especially Superfund.\23\
       In 1994 his biggest single U.S. investment is American 
     International Group. According to Best's Review--an industry 
     trade magazine and investment adviser--A.I.G. is ``depending 
     on * * * judicial trends'' on Superfund for its future 
     financial health.\24\
       The Judge also owns stock in General Re Corporation. That 
     company's 1994 annual report warns investors that their 
     future earnings could be affected by ``new theories of 
     liability and new contract interpretations'' by judges on 
     Superfund.\25\
       Judge Breyer appears to have been accommodating these 
     concerns. And his investments in such companies--unlike that 
     in Lloyd's--are investments that a judge with ethical 
     sensitivity could, and would, have gotten out of and stayed 
     away from.


                               CONCLUSION

       Chief Judge Stephen Breyer has more than once violated the 
     Federal Disqualification Statute--a Statute that was designed 
     to ensure the constitutional requirement that ``justice must 
     satisfy the appearance of justice.'' In violating that 
     Statute, he has, predictably, caused the very ``suspicions 
     and doubts'' about the integrity of judges that the Statute 
     was enacted to avoid.
       These violations of his judicial responsibilities raise 
     serious doubts about how Judge Breyer would conduct himself 
     as a Justice of the Supreme Court. And his refusal to 
     recognize anything more serious than ``imprudence'' 
     reinforces those doubts.
       In addition, Judge Breyer's violations, and his insistence 
     that he has done nothing improper, raise the concern that as 
     a member of Supreme Court, Judge Breyer would vote to weaken 
     the Federal Disqualification Statute, thereby encouraging 
     other federal judges to disregard the intent of Congress in 
     enacting that law.
       For these reasons, I oppose confirmation of Judge Stephen 
     Breyer to the Supreme Court of the United States.
           Very truly yours,
                                               Monroe H. Freedman,
         Howard Lichtenstein Distinguished Professor of Legal 
           Ethics.


                               footnotes

     \1\Liljeberg v. Health Services Acquisition Corp., 108 S.Ct. 
     2194, 2205 (1988), quoting In re Murchison, 75 S.Ct. 623, 625 
     (1955).
     \2\Id.
     \3\28 U.S.C. 455(a).
     \4\Liljeberg at 2205, citing legislative history.
     \5\Liteky v. U.S., 114 S.Ct. 1147, 1153-1154 (1994) (emphasis 
     in the original).
     \6\Id. The Supreme Court was unanimous on these points.
     \7\Liljeberg, at 2205, n. 12, quoting previous cases.
     \8\Tumey v. State of Ohio, 47 S.Ct. 437 (1927); In re 
     Murchison, 75 S.Ct. 623 (1955); Aetna Life Insurance Co. v. 
     Lavoie, 106 S.Ct. 1580 (1986).
     \9\The quote goes back to Justice Cooley's treatise, 
     Constitutional Limitations.
     \10\Professor Gillers cites Liteky only for the point (which 
     is immaterial to his conclusion) that ``[w]hile Sec. 455(a) 
     and Sec. 455(b) overlap, they are not congruent.''
     \11\The information was first revealed publicly in an article 
     in Newsday on June 24, 1994.
     \12\N.Y. Times A:1, A16, July 13, 1994.
     \13\Id.
     \14\Id.
     \15\Gillers to Freedman, Lexis Counsel Connect E-mail, July 
     10, 1994.
     \16\See the original article in Newsday, June 24, 1994.
     \17\This is in contrast to the second clause of the same 
     subsection, which requires only that he make a ``reasonable 
     effort'' to inform himself about the financial interests of 
     members of his household.
     \18\900 F.2d 429 (1990).
     \19\947 F.2d 1509.
     \20\Liteky at 1153.
     \21\802 F.2d 783 (5th Cir., 1986).
     \22\I am relying here upon the reporting and analysis of 
     Bruce Shapiro in The Nation, p. 76, July 18, 1994.
     \23\Id.
     \24\Id.
     \25\Id.

                                              New York University,


                                                School of Law,

                                      New York, NY, July 15, 1994.
     Hon. Joseph R. Biden,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Office Building, Washington, DC.
       Dear Chairman Biden: The White House Counsel's Office has 
     given me a copy of Professor Monroe Freedman's letter to you 
     of July 13, 1994, and asked me to reply to it. Since the 
     letter takes issue with my July 8, 1994 letter to the White 
     House Counsel, I appreciate having this opportunity to do so. 
     The issue, of course, is whether Chief Judge Stephen Breyer 
     violated 28 U.S.C. Sec. 455 when he sat in certain pollution 
     cases while he was also a ``Name'' in a Lloyd's syndicate. I 
     will assume general familiarity with the facts and the prior 
     correspondence.
       Professor Freedman is in my opinion in error when he 
     charges Judge Breyer with illegal conduct. Professor Freedman 
     has misconstrued the governing rules and ignored governing 
     precedent. I shall explain how presently. First, though the 
     Committee should be aware of a critical doctrine that has not 
     yet been identified.
       Section 455, which derives from the 1972 ABA Code of 
     Judicial Conduct, states the Congressional rules for recusal 
     of a federal judicial officer. The section has two kinds of 
     rules: categorical rules and standards. The categorical rules 
     require no judgment. They either apply or they do not. The 
     standards, by contrast, require judgment.
       An example of a categorical rule is Sec. 455(b)(5)(i), 
     which would require a judge to step aside if the judge's 
     ``spouse, or a person within the third degree of relationship 
     to either of them. . . . Is a party to the proceeding. . . 
     .'' This circumstance either exists or it does not. If it 
     does, recusal is required.
       The two provisions of Sec. 455 that have been cited in 
     connection with Judge Breyer (until Professor Freedman 
     injected a third, discussed below) contain standards, not 
     categorical rules. The first standard is that part of 
     Sec. 455(b)(4) that requires recusal if the judge (as an 
     individual of fiduciary) or certain relatives of the judge 
     have ``any other interest that could be substantially 
     affected by the outcome of the proceeding.'' The second 
     standard is Sec. 455(a), which requires recusal if the 
     judge's ``impartiality might reasonably be questioned.''
       As should be clear, these two standards require a judge to 
     interpret imprecise words like ``could,'' ``substantially 
     affected,'' ``might'' and ``reasonably.'' The meaning of 
     these words (and the standards that contain them) are, of 
     course, clarified as cases construe them, but they have 
     never, and were not intended to, become fixed categories.
       When we deal with standards, we deal with a continuum. In 
     some matters, it will be self-evident that a judge's 
     ``impartiality might reasonably be questioned'' or that a 
     proceeding's ``outcome'' could ``substantially'' affect a 
     judge's interests. In other matters, the opposite will be 
     clear. But in many cases, different judges will apply the 
     standards differently.
       That doesn't mean that one judge is right and the other 
     judge wrong. It means only that as with all flexible 
     standards there will be room for disagreement. The way that 
     the judicial system accommodates this reality is pertinent to 
     the questions before the Judiciary Committee.
       Appellate courts routinely defer to a judge's decision 
     regarding application of a standard by upholding the decision 
     unless it was an ``abuse of discretion.'' Town of Norfolk v. 
     U.S. Army Corps of Engineers, 968 F. 2d 1438, 1460 (1st Cir. 
     1992); Pope v. Federal Express Corp., 974 F.2d 982, 985 (8th 
     Cir. 1992). This test recognizes that there is significant 
     room for disagreement in the application of a standard. 
     Reasonable minds may differ and neither will be wrong.
       While Professor Freedman holds that Judge Breyer should 
     have recused himself in certain of his pollution cases, I and 
     others who study the law of judicial disqualification have 
     reached an opposite conclusion. That difference of opinion is 
     rather strong evidence that the situations confronting Judge 
     Breyer did not self-evidently require his recusal, but were 
     instead situations in which reasonable minds might differ on 
     the application of the standard. Judge's Breyer's conduct was 
     not, therefore, an abuse of discretion and Judge Breyer did 
     not violate Sec. 455 notwithstanding that another judge might 
     have elected differently.
       Not only do I believe that Judge Breyer's decision to sit 
     in the pollution cases was reasonable, I believe it was 
     right. In the balance of this letter, I will explain why 
     Sec. 455 did not disqualify Judge Breyer and where I think 
     Professor Freedman goes wrong.
       I have already quoted from Sec. 455(b)(4). A judge must not 
     sit if the judge (including certain relatives) has ``any 
     other interest that could be substantially affected by the 
     outcome of the proceeding.'' The words ``any other interest'' 
     are to be distinguished from a separate basis for recusal if 
     a judge has a ``financial interest in the subject matter of 
     the proceeding or in a party to the proceeding.'' Such a 
     ``financial interest'' requires recusal ``however small.'' 
     Section 455(d)(4).
       No one has suggested that Judge Breyer had a ``financial 
     interest'' in a party to proceedings before him. Professor 
     Freedman has rhetorically asked, however, whether Judge 
     Breyer had a ``financial interest'' in the ``subject matter'' 
     of proceedings before him. (Freedman letter at p. 8.) This 
     suggestion is wrong, as I shall discuss below.
       In order to trigger Sec. 455(b)(4)'s reference to ``any 
     other interest,'' several facts must be true (and the judge's 
     failure to recognize their truth must be an abuse of 
     discretion). These facts are that the (i) the judge has an 
     ``other interest'' that (ii) ``could be'' (iii) 
     ``substantially affected'' by (iv) ``the outcome of 
     the proceeding.''
       Judge Breyer had an investment in Lloyd's. I assumed in my 
     letter to Mr. Cutler that he had unlimited financial exposure 
     on that investment. That satisfies factor (i). However, it 
     does not satisfy factor (iii), even though I am assuming that 
     Judge Breyer's financial exposure is unlimited.
       The word ``substantially'' refers to the effect on the 
     ``interest'' that the ``outcome of the proceeding'' ``could'' 
     have. Professor Thode, the Reporter for the ABA Judicial 
     Conduct Code from which this part of Sec. 455(b)(4) was 
     drawn, has written: ``Here the issue is not whether a judge 
     has a `substantial interest,' but whether the interest he has 
     could be substantially affected by a decision in the 
     proceeding before him.'' E. Thode, Reporter's Notes to Code 
     of Judicial Conduct 66 (1973) (hereafter ``Thode'').
       In measuring the possible effect of the ``outcome of the 
     proceeding'' on the judge's interest, we must construe the 
     word ``could.'' As stated, ``could'' is not a precise word. 
     ``Could'' could mean ``could conceivably'' or it could 
     require a closer nexus between the outcome of the proceeding 
     and the effect on the judge's interest. The courts have 
     construed ``could'' to require a closer nexus.
       My letter to Mr. Cutler cites two cases that require a 
     ``direct'' connection between the outcome of a proceeding and 
     the judge's interest. By contrast, a ``remote, contingent, 
     and speculative interest'' will not suffice. In re Placid Oil 
     Co., 802 F.2d 783, 786-77 (5th Cir. 1986); Gas Utilities Co. 
     of Alabama, Inc. v. Southern Natural Gas Co., 996 F.2d 282 
     (11th Cir. 1993), cert. denied, 114 S.Ct. 687 (1994).
       While Professor Freedman suggests (p. 9) that Placid Oil is 
     ``obsolete,'' because of the Supreme Court's decision in 
     Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 
     (1988), two year later, this is wrong. First, the Eleventh 
     Circuit, cited Placid Oil in 1993 for the very point made 
     here. Other courts have cited it, too, after Liljeberg. See, 
     e.g., McCann v. Communications Design Corp. 775 F. Supp. 1535 
     (D. Conn. 1991).
       Second, the facts of Liljeberg are dramatically different 
     from those in Placid Oil. In Liljeberg, a university with 
     which the judge had a fiduciary relationship would (as a 
     result of contractual obligations and real estate values) 
     gain millions of dollars if the judge awarded the rights to a 
     certificate of need for a hospital to the defendant. That 
     gave the judge, as fiduciary, an interest ``however small'' 
     in the subject of the litigation (the certificate) and also 
     an interest that could be substantially affected by the 
     outcome of the proceeding. The facts of Liljeberg show a 
     ``direct'' effect on the judge's interest as a fiduciary, and 
     of course the effect was substantial.
       Permit me to make this clearer with an example. Assume that 
     the outcome of a case will nearly certainly cause a $100 
     decline in the value of the judge's stock interest. The 
     effect, then, is ``direct,'' but the judge's financial 
     interest is not ``substantially affected'' because the amount 
     is too small. Now assume an omniscient observer could tell us 
     that the outcome of a proceeding will have 1/1000th of a 
     chance of causing the judge's stock interest to decline by 
     $100,000. There, the effect is substantial but it is not 
     ``direct.''
       Professor Freedman cites two cases in which he concludes 
     Judge Breyer should not have participated. Did the Judge 
     abuse his discretion by concluding that the decisions in 
     these cases could not have a direct and substantial affect on 
     his financial interest in Lloyd's? That is the question.
       One issue in United States v. Ottati & Goss, Inc., 900 F.2d 
     429 (1st Cir. 1990), the issue Professor Freedman cites, was 
     whether a federal judge had to grant the EPA the precise 
     injunction it requested (so long as the request was not 
     arbitrary) or whether instead the judge had broader 
     discretion. Judge Breyer held that the judge had broader 
     discretion.
       Professor Freedman writes that Judge Breyer should not have 
     properly decided that case because it ``involved the [EPA's] 
     powers to impose liability on polluters like those the Judge 
     knew he was insuring.'' (Freedman letter at p. 6.) This is 
     just wrong. It is not the standard. Professor Freedman cannot 
     say with any degree of confidence that the decision in Ottati 
     & Goss would have a direct and substantial effect on the 
     judge's interests. Furthermore, Professor Freedman leaves 
     out an important part of the case. The EPA had two routes 
     for seeking judicial injunctions. It had proceeded under 
     one of them. Judge Breyer expressly acknowledged that if 
     it had proceeded via the other route (seeking enforcement 
     of a nonarbitrary EPA order), ``the court must enforce 
     it.'' Id at 434.
       Now think about the chain of events one would have to 
     envision to get from the holding in Ottati & Goss to the 
     conclusion that Judge Breyer's interests could be directly 
     and substantially affected. One would have to say that 
     because a trail judge will have discretion whether to grant 
     an EPA injunction when the EPA proceeds along one route 
     rather than another, it could happen that in another case the 
     EPA would elect the first route in an action against an 
     insured of Judge Breyer's Lloyd's syndicate, that the judge 
     in that case will deny EPA the injunction it seeks (relying 
     on the discretion Judge Breyer's opinion affords), that the 
     syndicate would not have to pay to comply with the particular 
     injunction EPA wanted, and that the effect from all this on 
     Judge Breyer's pro rata financial interest in the syndicate 
     would be ``substantial.'' That chain of events is what the 
     caselaw means when it uses the words ``remote, contingent, 
     and speculative.''
       Professor Freedman also cites Reardon v. United States, 947 
     F.2d 1509 (1st Cir. 1991) Reardon is even a more farfetched 
     example than Ottati & Goss. Judge Breyer sat on an en banc 
     court that held that, absent exigent circumstances, due 
     process required ``notice of an intention to file a notice of 
     lien and provision for a hearing if the property owner 
     claimed that the lien was wrongfully imposed.'' Id. at 1522. 
     Professor Freedman wrongly says that the decision ``held that 
     the EPA did not have the power to impose the lien.'' (letter 
     at p.7.) It did, so long as it gave notice of its intention 
     to do so and afforded a hearing thereafter.
       Professor Freedman connects Reardon to the situation at 
     hand this way: ``The loss represented by that lien is the 
     same kind of loss that Judge Breyer was liable to reimburse 
     as an insurer.'' (letter at p. 7.) This is beyond 
     ``speculative.'' What ``loss'' is Professor Freedman 
     referring to? Think about the extended chain of events one 
     should have to describe to get from the Reardon holding to 
     Judge Breyer's interests. The EPA would have to give 
     notice of an intent to impose a lien on property of an 
     insured of the Judge's Lloyd's syndicate. Then, before the 
     EPA could file its lien, the recipient of the notice would 
     have had to defeat that effort by making a quick 
     disposition of the property, thereby defeating the EPA's 
     security interest. As a result of that disposition somehow 
     (I'm not clear how) the syndicate would escape its 
     insurance responsibility and the pro rata savings to Judge 
     Breyer in particular would have to be substantial. Reardon 
     simply does not support Professor Freedman's conclusion.
       Before I leave Sec. 455(b), I want to recognize that a 
     ``remote, contingent, and speculative'' interest is not the 
     same as no conceivable interest whatsoever. A system of 
     judicial recusal must balance between the risk of real or 
     apparent personal interest, on the one hand, and an unduly 
     broad standard that disqualifies a large number of judges (or 
     severely limits their investments), on the other. A broad 
     standard would lead cautious judges to step aside no matter 
     how improbable an effect on their interests. I believe the 
     courts have struck the right balance. But the line will 
     sometimes be unclear, calling on the judge to exercise 
     discretion.
       On occasion, by definition , even a remote interest will 
     become a reality. Today's issue of Newsday reports that a 
     loser in a case before Judge Breyer sued a Lloyd's syndicate 
     for reimbursement of its expenditures under an insurance 
     policy the loser had with Lloyd's. The syndicate may or may 
     not have been Judge Breyer's syndicate. Let's assume it was 
     Judge Breyer's syndicate. That is part of the price of a 
     balanced rule. A rule that prohibited a judge from sitting if 
     a decision could have any conceivable effect on his or her 
     interests would have its own (in my view less appealing) 
     price.
       In addition, I have been asked to assume that Judge Breyer 
     did not and could not have known the particular insureds 
     under his Lloyd's syndicate. Section 455(b) quite clearly 
     requires knowledge.
       Professor Freedman also relies on Sec. 455(a), which 
     requires recusal if a judge's ``impartiality might reasonably 
     be questioned.'' Apparently, Professor Freedman believes it 
     to have been an abuse of discretion for Judge Breyer not to 
     recuse himself under this provision.
       Section 455(a) requires recusal when an ``objective, 
     disinterested, observer fully informed of the facts 
     underlying the grounds on which recusal was sought would 
     entertain significant doubt that justice would be done'' in 
     the particular case. Union Carbide Corp. v. U.S. Cutting 
     Service, Inc., 782 F. 2d 710, 715 (7th Cir. 1986). I do not 
     believe that conclusion can be reached on the facts of the 
     cases in which Judge Breyer sat. Certainly, it was not an 
     abuse of discretion to reject application of Sec. 455(a) as 
     so defined.
       A stronger objection to Sec. 455(a) exists. As I mentioned 
     in my letter to Mr. Cutler, while not congruent, Sec. 455(a) 
     and Sec. 455(b) do overlap. As a matter of statutory 
     interpretation, it is improper to resort to Sec. 455(a) when 
     Congress has specifically legislated criteria for recusal in 
     the particular circumstances described in Sec. 455(b) and 
     these criteria are absent. As the Court wrote in Liteky v. 
     United States, 114 S. Ct. 1147, 1156 n.2 (1994), ``it is poor 
     statutory construction to interpret (a) as nullifying the 
     limitations (b) provides, except to the extent the text 
     requires.''
       Here, Sec. 455(b)(4), as construed in caselaw, requires 
     that the outcome of the proceeding before the judge have both 
     a direct and substantial effect on the judge's interests. 
     Liteky tells us that we should not use Sec. 455(a) to 
     ``nullify'' these requirements. Specifically, here, we should 
     not use Sec. 455(a) to require recusal where the effect is 
     ``remote'' or ``speculative'' or ``contingent.'' In any 
     event, the same test is employed to reject recusal under 
     Sec. 455 (a). In re Drexel Burnham Lambert, Inc.,  861 F.2d 
     1307, 1313 (2d Cir. 1988) (remote, contingent, or speculative 
     interest does not reasonably bring judge's impartiality into 
     question.)
       Let me conclude by addressing two other of Professor 
     Freedman's points. First, he suggests that Judge Breyer might 
     have had a ``financial interest'' in the ``subject matter'' 
     of the cases before him because the legal issue he decided 
     could arise in a case involving his Lloyd's syndicate. 
     Professor Freedman does not even adopt this view himself. 
     He says merely that ``some have read'' the phrase 
     ``subject matter in controversy'' to include the remedy, 
     like the lien at issue in Reardon. He also writes that 
     ``[o]ne could similarly say'' that EPA enforcement powers 
     in Ottati & Goss were the ``subject matter'' of that 
     controversy.
       ``One'' could, of course, ``say'' many things, just as 
     ``some'' may have ``read'' the statute a variety of ways. But 
     the fact is that no authority supports the view that a judge 
     can have a ``financial interest'' in a question of law. As 
     Professor Thode explained, the ``subject matter'' language 
     ``becomes significant in in rem proceedings.'' Thode at 65. 
     Another example is Liljeberg, where the university on whose 
     board the judge sat had a financial interest riding on the 
     holder of the certificate of need, which was the subject 
     matter before the judge. This is not a case like Tumey v. 
     State of Ohio, 273 U.S. 510 (1927), cited by Professor 
     Freedman, where the adjudicator had a financial interest in 
     the very fine he imposed on the defendant because he would 
     receive part of it.
       Professor Freedman suggests (p. 5) that Judge Breyer 
     violated his duty to keep himself informed of his financial 
     interests. Section 455(c). My letter was premised on two 
     assumptions about what Judge Breyer knew or could have known 
     and what he did not know and could not have known. I charged 
     him with knowledge of what he could have known but he can't 
     be faulted with not knowing what he could not have known.
       Thank you for this opportunity.
           Sincerely,
                                                  Stephen Gillers.

  Mr. KENNEDY. Mr. President, I withhold the remainder of the time. I 
suggest the absence of a quorum, and ask unanimous consent that the 
time be equally divided.
  The PRESIDING OFFICER (Mr. Mathews). Without objection, it is so 
ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BIDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, it has been a number of years now that I 
have had the privilege and responsibility, as chairman of the committee 
or ranking member of the Judiciary Committee, to be involved in the 
confirmation hearings of Supreme Court nominees. One of the things that 
always impresses me after it is all over is that my staff and I spend 
so much time--usually months--reading every single solitary document 
the nominee has ever written. I do not mean that figuratively, I mean 
that literally--at least every one we are aware of; interviewing 
individuals, listening to testimony--in the case of Judge Breyer, 22 
hours of his testimony--before the committee. I do not talk to my 
brother that long, and he is my best friend. I am always amazed at what 
a broad and deep picture we get of an individual when that process is 
over.
  Quite frankly, the only aspect of being chairman of the Judiciary 
Committee I do not like is the nominating process, because I almost 
feel like I am being too intrusive, almost learning too much about an 
individual--not so much about their personal lives, but about what they 
think, and how they have acted in their adult life, and how they have 
conducted themselves professionally.
  I must say that in the case of Judge Breyer, after this long and 
detailed process, where I personally will have spent literally hundreds 
of hours in detail roaming through his writings, asking him questions, 
discussing constitutional methodology and theory with him and cases, I 
came away from the hearing--and I come to the floor--with the same 
feeling that the entirety of the Judiciary Committee left those 
hearings and the process with: That this is a man of high integrity, 
unblemished achievement, and consistent, constant, relentless 
excellence in whatever he undertook. This guy was everything from, 
literally, an Eagle Scout to--I think he was, if not the editor in 
chief--the article editor with the Law Review at Harvard law school.
  I am sure he--like everyone in this country--has had his share of 
personal pain, travail, and trouble, but you would not know it from 
this man's record. He has succeeded at everything he has undertaken.
  So I approach this nomination, as I approached the five other 
nominations that preceded it during my tenure as chairman of the 
Judiciary Committee, with two goals in mind. The first goal is to meet 
the committee's formal obligation given to it by the Senate to 
scrutinize the nominee's credentials, abilities, and to make 
recommendations to the full Senate about the nominee's worthiness to 
sit on the Supreme Court.
  That sounds a bit presumptuous, for all of us to talk about the 
worthiness of someone to sit on the Court. But I will remind all of us 
that this is one of the three branches of Government, and it is 
incredibly powerful. A woman or man placed on the Court, as we all 
know, is there for life, assuming good behavior. It requires an 
impeachment to get a person off the Court.
  Everything the Court does affects our daily lives. This is the only 
opportunity the public at large has to try to look into the background, 
philosophy, attitude, judicial temperament, and moral standing of the 
individual, just like they look into us, as they should, every 6 years, 
and House Members every 2 years, and the President every 4 years. We 
stand for election. And people say to us, well, we like you or we do 
not like you. We like this about you or do not like this about you.
  That is what a democracy is about. When you think about it, there is 
no such undertaking other than this process for a branch of Government 
that has affected the lives of the people over 200-plus years, equally 
as the Senate, House or President of the United States has. And so it 
is, in one sense, in a personal sense, a high responsibility, and not a 
particularly welcome one on all of our parts, to look into the 
background of someone. But it is a responsibility. Under the advice and 
consent clause, it is one that we do, must, and should take seriously.
  That was the first goal of the committee to do, look into and 
examine--the minority staff, majority staff, and the investigators, and 
I will not even guess how many hours they put in. If I put in a couple 
hundred, I am confident, without exaggeration, they put in thousands of 
hours in figuring out--if you take all the staff who worked on this--
what this man is about, and what his philosophy is, and what the 
likelihood is for him to be able to perform his duties well for the 
Court. It is like an election. We are about to have an election, like 
we have in a democracy for a President or a Member of Congress. This is 
the election.
  The Founding Fathers decided we are the electors, the ones who 
decide. The President nominates, like a party nominates a candidate. A 
man or woman is nominated by the President and comes before the 
electors, the people that sit in here. Again, it is not a job we 
relish, but it is a job we have been constitutionally assigned.
  So that was my first goal, to do that thoroughly and well, so we can 
come back to this body and say to all of you who served in the body, 
that after our intensive and extensive look at this man, this is what 
we think he is about.
  My second goal in each of these hearings and nominations has been a 
larger one, to consider the work of the Supreme Court as a whole by 
conducting a public hearing about how the Court affects and determines 
the values by which our Nation defines and redefines itself over time 
and the means by which Government can act to express and defend those 
values.
  So, as nominees have appeared before me, I have tried to engage them 
in a dialog about the most important issues facing the Supreme Court 
and, consequently, facing the Nation.
  I found, over the years, that the urgency of the issues has waxed and 
waned from one nomination to the next, but none has ever disappeared 
entirely.
  Thus, I have added new concerns even as I have continued to press on 
others more familiar to everyone. So that it was with Judge Breyer. I 
pressed him on the same areas I have pressed other of his predecessors 
and on new areas as well, because there are new areas of concern and 
there are new areas of activity on the part of the Supreme Court 
affecting the lives of Americans.
  In the late 1980's, the Nation watched to see whether the Supreme 
Court would limit the right of the individual to make certain highly 
intimate decisions free from Government interference or, as one former 
Justice said, the ``right to be let alone.''
  In considering the nomination of Judge Robert Bork, therefore, I 
focused on the scope of personal rights not named in the Constitution, 
so-called unenumerated rights. As the Chair will recall, Judge Bork, a 
brilliant jurist and a brilliant professor, argued with some degree of 
intellectual consistency and with some power of persuasion that there 
were no constitutionally guaranteed rights--I am 
oversimplifying it in the interest of time--there were no 
constitutionally guaranteed rights any individual had unless the 
Constitution named them, unless they were enumerated, named in the 
Constitution.
  And if that were so, then many of the rights we take for granted and 
we assume are protected by the Constitution, everything from who we can 
marry, to whether or not a married couple can choose to have a child or 
not by using birth control, very intimate personal decisions not 
named--there is no place in the Constitution that uses the word 
``marriage'' or ``husband'' or ``wife,'' no place in the Constitution 
that uses the phrase ``birth control,'' but the Constitution in its 
interpretation by the Supreme Court in the past has been read to say, 
yes, these are rights that are protected constitutionally.
  And as to Judge Bork, whether he viewed those should not be read that 
way, his basic philosophy and the principle he espoused was, if it is 
not named, it does not exist and it should be left to the democratic 
institutions to determine whether to guard those rights or not.
  So it was a big deal. It was a big deal because one of the leading 
intellectuals in American jurisprudence was before the U.S. Senate 
seeking to go on the Court espousing this view.
  More recently, in the late eighties, we have seen new challenges 
mounted to the rights of individuals as protected or nonprotected 
within the Constitution. In the early 1990's, we have seen new 
challenges mounted by the most power economic interests in America to 
reduce the ability of Government to protect the rights and interests of 
the vast majority of the American people. Obviously, that is my 
characterization.
  Thus, in the hearings on Justice Clarence Thomas's nomination, I 
pressed Judge Thomas on his view about the ``takings clause.'' Everyone 
now knows what it was. When I kept using the phrase back then, he said, 
why is Biden asking the thing about the takings clause, the takings 
clause of the fifth amendment. Every time anyone hears the fifth 
amendment, they think of someone raising the right hand and saying, ``I 
take the fifth,'' meaning ``I do not want to say anything.''
  There is another noninconsequential clause within that fifth 
amendment, and it is called the takings clause, and it defines the 
circumstances under which any government entity can, in fact, impact 
upon your right to use your property.
  A case in point: The State of Delaware wants to widen the highway, a 
2-lane highway, a crown top road, to a 4-lane highway. Well, under the 
right of eminent domain they can come along and take some of your 
farmland or some of your front yard, but they have to make a showing 
that the reason they are taking your property is for the public good. 
They are taking this little road, making it a big road, and that is 
what the public wants and needs. So, they take your property to build a 
road. When they do that, they have to pay you for the value of the 
property they have taken.
  But over the centuries what has developed in our English 
jurisprudence system was the notion about how, if you are using your 
property in a way that is a nuisance to your neighbors--in modern 
terms, about how you are using your property, if your oil is seeping 
out of your underground oil tank that heats your home and it is 
contaminating the pool water of your next door neighbor or contaminates 
the property of your neighbor--now you are a ``nuisance'' as they used 
to refer to it in the English common law. You are a nuisance. You are 
bothering me by the use of your property.
  Can the Government come along and say--in addition to your being able 
to sue the person who is creating the nuisance--``By the way, people 
cannot have a tank that leaks or people cannot have factories that spew 
out of the factories choking dust or carcinogenic substances or bad 
things?''
  What happens when the Government comes along and says in that 
circumstance, ``By the way, factory owner, all factory owners in the 
State of Delaware are required to make sure what they have coming out 
of their smokestack is not harmful, because you have something coming 
out of your smokestack that is harmful?''
  So the Government says, ``Fix it or we shut down your factory.'' And 
that could cost you millions of dollars. We have taken your property. 
If we shut down your factory, we have not physically taken title to it, 
but we have taken your property. We have taken value. Or we say, ``Put 
a scrubber on that smokestack, collect all that terrible stuff before 
it goes into the air.'' That costs you, say, $1 million. Well, we have 
taken a million dollars out of your pocket, made you put it on that 
smokestack. Now, we have taken your property.
  Under the Constitution, what does that mean? You have a taking 
problem.
  I will not go into a lot of detail on this. But the Court basically 
has said over the years, over the centuries, ``Look, when we take your 
property that way, that is really not taking your property. That is 
legitimate regulation.'' I am not using legal terms now in terms of art 
but trying to explain the concept here. And it is a dangerous thing to 
do to try to condense it this way. It will not do full justice to the 
theory here. But I am taking your property. The State of Delaware 
passed this law. The United States of America has passed this law.
  Now, the landowner says: ``Wait a minute. You took my farmland 
because you widened the road, and you paid me for that.'' And they say: 
``Yes, we took it because it was for the public good, and it was not 
because you were doing anything bad.'' But, you say, ``That was only 
worth $200,000, and you paid me for that, but now you took 1 million 
bucks out of my pocket making me put all these pollution control 
devices on my chicken houses and on my compost piles, and all these 
things. That cost me a million bucks. So you paid me $200,000 for the 
land you took, but you are not going to give me any money for the 
million bucks you made me spend?''
  The Court says: ``No, we are not going to do that because there is a 
legitimate purpose that the Government has for the common good of the 
people to regulate for your public health and safety of the folks out 
there.''
  So, the debate. All of a sudden these folks who used to use the 14th 
amendment in the so-called Lochner era to give excessive rights to 
property owners and people who wanted to contract--remember back in the 
days when they struck down all those New Deal laws saying you cannot 
have child labor laws, you cannot have laws that protect people in the 
work environment, and the Supreme Court kept striking those down? The 
Supreme Court kept using a thing called the 14th amendment to say, 
``Hey, you know, the 14th amendment says you have a right to your 
property, a right to due process, and by the way, if you want to 
contract with that 14-year-old kid or you want to contract with that 
baker or that baker wants to open up a shop and wants to work 18 hours 
a day, you cannot pass a law saying bakers cannot work but 12 hours a 
day because the dust they inhale is bad for their health. You cannot do 
that. You cannot regulate the public health and safety that way. You 
are violating their 14th amendment rights.
  By the mid-1930's they came along and said that is crazy; that does 
not make sense. We ought to be able to help people with their health 
and their safety without it being a constitutional violation.
  Well, we thought that was gone. We thought the monster had been 
buried. Guess what. It is back.
  The use of the l4th amendment that way in Lochner, it is back. It is 
back in the guise of the fifth amendment and the takings clause. 
Because now there is a new school of thought that basically says, 
``Let's go back and relook at that fifth amendment and that takings 
clause thing where it says you can't take somebody's property without 
paying them. We ought to count all regulations within that category.''
  So now if I tell you you have to put a scrubber on your smokestack 
that is going to cost a $1 million, a lot of new legal scholars of the 
Chicago School of Economics are coming along, saying, ``I'll tell you 
what. The Government can tell me not to spew that stuff out--I do not 
argue with that--but if it costs me money to keep the air clean, you 
have got to pay me. Just like you pay me for my farmland, you have got 
to pay me to keep the air clean.''
  And that is a big deal. That is a big deal, because that for the 
taxpayers is billions of dollars.
  Can you imagine what happens if we say, OK, in a Clean Water Act, we 
are going to have the water clean and here is the standard of what 
constitutes clean?
  Let us take my State. We have farmers plowing their fields. And that 
is the big industry in my State. I know my friend from Iowa is here. He 
has some farms almost as big as my State. But it is the biggest 
industry in my State, farmers, bigger than the chemical industry, 
bigger than anything else in my State.
  And so you have a farmer down in Dover, DE, and he has a field or she 
has a field that she is working that is right next to the Playtex 
factory. There is a Playtex factory down there; or, right next to the 
General Foods factory, which is down there. And General Foods, they are 
not, but let us assume they are spewing stuff out of the processing 
plant that was leaching on to the fields of the farmer. Right now, the 
farmer has the county council and the State which says, ``By the way, 
you can't do those kinds of things.'' So the farmer is protected.
  But the way this new school of thought would have it--and, granted, I 
am oversimplifying this, but the principle is accurate. What a lot 
folks want to say now is, ``Ah ha, farmer, the State can't do that and 
regulate that factory from spewing onto your field. You have got to do 
one of two things: You sue them. You prove that you have been hurt by 
that and you sue them. It is between you and that big factory. Or, the 
State can go ahead and tell them they can't spew this stuff onto your 
field but you have got to pay them the cost of keeping them from doing 
that, which means everybody's taxes, including yours, gets raised. We 
are going to raise your taxes to pay that factory for not polluting 
your field.''
  It is a big deal in terms of dollars. And so that is this whole new 
debate which, I promise you, you all are going to hear a lot more 
about.
  It is the intellectual and practically most important debate engaged 
in in the last 20 years in American jurisprudence. And it is just 
starting.
  And, by the way, I am not suggesting there is anything nefarious 
about those who are on the other side of this debate. I mean, the 
intellectuals and the leading scholars, I am not saying they are bad 
folks. It is just a different way of how do you read that little old 
thing called the takings clause. It is a multibillion decision. If you 
read it the way I read it, you come out one way. If you read it the way 
some folks want to read it, it has multibillion dollar implications for 
the taxpayers of America.
  So the reason I bothered to go into that is to show you that these 
esoteric things that we sit in the committee spending hundreds of hours 
preparing for and scores of hours asking witnesses about have 
overwhelming consequences on how average Americans can live their 
lives, just by reading the takings clause a different way. All the 
folks here in Washington today, tourists, can have their lives 
radically affected--not necessarily all bad.
  If you own a big factory, you are in good shape. By the way, if you 
are a small property owner, you could, in certain circumstances, be in 
good shape, too. It could help you.
  But the bottom line, to use that trite expression, is we are talking 
about moving billions of dollars.
  Zoning regulations. You live in a residential neighborhood. How many 
people who live in a residential neighborhood want the owner of the 
next door property to buy up the guy's property next door to him, and 
now he owns two houses, to say, ``I'm going to tear them down and build 
a 32-story building?''
  ``You can't do that and live here. This is my neighborhood. We all 
know you have got zoning laws. You can't build a 32-story building in 
my neighborhood. They are all four-bedroom houses here. We have kids 
running around.''
  What do you do? Up to now, we have said the county which comes along 
and says, as long as they apply to everybody, nobody in these kinds of 
circumstances can build 32-story buildings. But there are a lot of 
people now arguing that is a taking, those zoning regulations are 
takings.
  ``You are taking my property. I have a two-story building on it. But 
if I can build a 32-story building on it, I will make 16 times as much 
money when I sell it. I can charge people rent to come into this 
building. I can make a lot of money. And you are telling me I cannot 
make money. It is my property, is it not? I live here. If I want to put 
a 32-story building on it, it is none of your business.''
  Well, under these new standards that are evolving in the minds of 
many right now, all the county has to do is say, ``No. Can't build that 
kind of building in this section of the county.''
  Well, these folks say, ``Well, OK, you can tell me I can't build a 
32-story building, but you have to pay me. Pay me. If I can prove to 
you I could have built a 32-story building and make my property worth 
$20 million and with a two-story house on it, it is only worth 
$510,000, you owe me the difference between $20 million and $510,000. 
So, taxpayers, pay me.''
  So, when people say you do not want the Government to take your 
property without paying you, I do not know of any red-blooded American 
who would not say, ``That's right. Don't want the Government taking my 
property. They better pay me.''
  So all my friends on the right say, you know that mantra is used and 
everybody goes, ``You're right.''
  But if I look at you and say, ``By the way, do you want a 32-story 
building on your property next door to your house? That is OK, you can 
keep it from being next to your house. But, by way, pay them not to 
build it,'' I imagine their attitudes would change substantially.
  Again, I have used extreme examples to make the point, but that is 
the nature of the debate.
  And so, my concerns changed from unenumerated rights and privacy with 
the Bork hearings, which was what was the onslaught at the time.
  We got to the Clarence Thomas hearings and it was all about this new 
theory that was being proffered. Some of the press said--which is 
true--about me: ``Biden: Boring.'' I am boring a lot. ``But why is 
Biden asking a lot of these questions about the takings clause?'' Then 
I noticed the same newspapers saying 3 years later, headline: ``Major 
Takings Clause Case.''
  You know, the Supreme Court has decided cases along the lines I am 
worried about.
  Well, I am here to tell you there is another concern coming our way, 
and that is the concern about the expansion of so-called ``economic 
rights'' at the expense of important rights that we have thought to be 
sort of sacrosanct. The hearing about balancing the takings clause, the 
balance between the rights of all people versus the economic rights of 
few.
  My concerns about the expansion of ``economic rights'' at the expense 
of other important rights have, unfortunately, proven well-founded, as 
demonstrated by the recent decision of the Supreme Court in Dolan 
versus Tigard and other cases.
  So in questioning Judge Breyer, I pressed him with renewed urgency on 
the question of how much protection should be afforded the economic 
rights of the few.
  These are issues--the scope of personal freedoms and the assault on 
the public welfare in the name of economic rights--that have concerned 
me before and where I have pressed other nominees.
  These concerns are, if you will, ``constitutional'' concerns--
concerns that certain elements would use constitutional interpretation 
to restrict important personal rights and, at the same time, expand the 
economic rights of the few powerful folks in America.
  This year I have had, also, new concerns, concerns that these same 
elements may try to restrict our freedom and demean our personal 
dignity and moral values, not through constitutional interpretation but 
through the interpretation of statutes passed by Congress and signed by 
the President.
  For example, in recent years Congress has sought to define and 
enforce the constitutional guarantee of equal protection of the laws 
through legislation. But in the last decade the Supreme Court has 
turned toward a grudging interpretation of those statutes we pass.
  By ``grudging'' I mean, when we say we want to protect that liberty, 
the Court says, ``Wait a minute. They want to protect the liberty 
rights, equal rights of the handicapped?'' And instead of looking at 
it, the Court says, ``We understand they want handicapped people to 
have these basic rights,'' because that is how we say it here. They, 
under new rules of interpretation, canons of interpretation they call 
it--and they are cannons in effect--take out a magnifying glass and 
say, ``Wait a minute. I am not sure they really wanted to protect that 
right. Because if they really wanted to protect that right they would 
have said it. If they wanted to protect this right under this 
circumstance they would have dotted that `i,' crossed those two `t's, 
and put in two extra commas. So we are going to interpret the statute 
to say they really did not mean to protect the equality rights of that 
group of people.''
  In the last decade the Supreme Court has tended toward this grudging 
interpretation of statues passed by the Congress and signed by the 
President, and in my view ignoring the intent of Congress, and instead 
developing restrictive, judge-made rules for reading the statutes. So I 
asked Judge Breyer about two Supreme Court decisions that seemed to me 
to illustrate this grudging trend, the Patterson case and the Dellmuth 
case. In both cases the Court refused to apply the civil rights 
statutes, passed by us, signed by Presidents--Democrat and Republican--
in a commonsense manner that gave full effect to the intent of Congress 
in ensuring equal treatment for black Americans and for handicapped 
children. That is what these two cases were about. One about a black 
American; one about a handicapped child. In the hearings I also had a 
second related concern.
  By the way, to illustrate this, in the Patterson case there was a 
Civil War statute that had been passed after the Civil War that said 
when you are going to hire somebody, as an employer you cannot go out 
and say, ``You know, you have on a gray suit. I do not like gray suit 
people. And, by the way, I do not like people who can type that fast. 
And, by the way, I do not like the color of your eyes. So I am not 
going to hire you.'' Or, ``You are black and because you are black I am 
not going to hire you.''
  We said that is wrong. A former Congress, 100 years ago, said that is 
wrong. You cannot do that.
  So they said, ``When you contract with somebody you have to contract 
with black folks the same way as you contract with white folks.'' It is 
a pretty good idea. It was revolutionary in 1877, but commonplace 
today.
  To oversimplify the case, along came this case, the Patterson case 
just a little while ago. And a black person said, ``They hired me, but 
once I got hired, they harassed me, they treated me with no dignity 
because I was black. They made no bones about that.''
  And so they said, ``Under this statute that was passed, I am entitled 
to have them stop doing that and make them hire me and make them keep 
me and make them treat me right.''
  And the Court came up with one of these. It took out a microscope--a 
magnifying glass, ``Let us see, now. What did they really mean by 
that?'' And they came up with the following interpretation, which I 
think in a commonsense way is perverse.
  It said, ``You know, you are right. When you look at that statute you 
cannot say you will not hire that man because he is black. You have to 
hire him if he is otherwise qualified, just like you would a white 
person. But once you hire him, he is on his own. You can fire him 
because he is black. You can harass him because he is black. All the 
statute means is you just cannot `not hire him.'''
  And people said, wait a minute, how did you get that?
  And the Court said, with their magnifying glass, ``The canons of 
interpretation.''
  We have the following, but I will not go into it. I will put it in 
the Record. I ask unanimous consent that a more scholarly dissertation 
on this case be printed in the Record, but it is important everybody 
understand it.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BIDEN. They took out their magnifying glass and in a grudging way 
said, ``Wait a minute. This statute only means hire.''
  Think about that. Think about anybody in this place writing the 
statute saying, ``you cannot * * *  not * * *  deny someone employment 
because they are black. But once you hire them you can pull them in the 
office and say you black SOB, you are fired because you are black.''
  Does that make any sense? Could anybody possibly have meant that?
  But what the Court recently has been saying is, if you mean you 
cannot fire them, if you mean that you cannot harass them on the job, 
you should say: ``By the way, it is wrong to deny someone employment 
because they are black. And then once they are hired it is wrong to 
treat them badly. And if you want to fire them you cannot fire them 
because they are black, so help me God.''
  That is the only thing that seems to satisfy this bunch across the 
street, now. So the point I am trying to make is the last 10 years in 
these hearings we have been focusing on: Are judges who are about to go 
on the bench, through the way in which they interpret the Constitution, 
going to be able to deny people basic human rights? And the Senator 
from Illinois, myself, and others have been scrutinizing nominees to 
make sure that is not their view.
  But I say to my friend from Illinois, he is on the floor and he is a 
member of the committee and he knows it, now we have to scrutinize it 
another way. We beat that back but now they come at it through another 
door. ``We are not interpreting the Constitution here, Senator. We are 
merely interpreting a statute,'' they say. ``And we want to make sure 
precisely what you mean, and therefore you say precisely what you mean. 
Because we know you folks in Congress, you women and men, you just let 
your staff do this stuff anyway,'' according to Judge Scalia. ``You do 
not know anything.'' In that sense he shares a lot in common with the 
American people, about what they think about us. But the point is, they 
say, ``You men do not know much, you women do not know much, so we are 
going to look at language and make sure it says precisely.''
  What are those rulings called? ``The clear statement.'' But one of 
the leading scholars in the area has another phrase. He calls them, 
``superstrong clear statements.'' Translated: You better say everything 
you mean, even if it is clear from the words you use that you mean 
exactly the same thing. You better say it.
  It is a little bit like saying, as one of my staff members, a 
professor at Georgetown, said to me--she said when she was explaining 
this to me, we were going through these cases: ``It is like my turning 
to you, Senator, and saying, `Can you tell me the time?' And you 
interpreting that to mean is she asking me, do I know how to tell time? 
And I would look at her and I would say, `Well, yes, I could tell you 
the time.' When obviously the reason she is looking at me and saying, 
`Can you tell me the time?' she means I do not have a watch; I do not 
know what time it is; would you please tell me what time it is, if you 
know.''
  But the way the Supreme Court is interpreting these statutes, they 
are interpreting like, if I said can you tell me the time, some on the 
Supreme Court are saying, ``Yes, we can.'' That is the difference. So 
now, through interpretation of statutes, some on the Court are setting 
up these canons and rules that have the same effect that some before 
have wanted to obtain through the Constitution, constricting the rights 
we value so much. That did not work too well, not very much in favor. 
So now those who are looking at constricting those rights that the 
Congress, by the Constitution through the 14th amendment, section 5 is 
being told, ``Look, we are guaranteeing these rights and you implement 
how to guarantee these rights,'' say: You, the Congress, you come up 
with a mechanism that says this is how we are going to guarantee them, 
this is how we are going to give life to this notion of equality.

  So in these hearings, we spent a lot of time talking about that.
  In recent years, a very influential group of scholars and judges, 
known as the law and economics movement, has proposed legal problems 
should be resolved from a purely economic perspective so that the only 
values that count are economic values and not the sort of moral values 
and norms that we, as a people, often prefer, like the high value we 
place on human life even when it does not make good sense in a purely 
economic sense.
  These new rules of interpretation, I say to the Presiding Officer, 
are used in a way to say what the Congress must have really meant is 
what makes economic sense. Let me give you an example--and I see 
colleagues on the floor wishing to speak. I will put the rest of my 
statement in the Record.
  The Senator from Iowa, the best nonlawyer I have ever run across--
this man is not a lawyer but you will not be able to tell that from the 
way he discusses the Constitution and the law. I mean that sincerely. 
He is also, I think, on the Labor Committee----
  Mr. GRASSLEY. And Agriculture Committee.
  Mr. BIDEN. And the Finance Committee. In the Finance Committee, he 
deals with subjects that relate to Social Security, entitlement 
programs and the like. And my friend from Illinois is on the Labor 
Committee.
  I will bet you they can each, in their involvement with issues in 
their committees, tell you times they have voted for and proposed 
maintaining programs that on a purely economic basis do not make any 
sense, if you run just pure, raw economics, an economic model.
  Case in point: In health care, as I understand it--and my friend from 
Illinois knows so much more about the health area than I do, and the 
health industry--but if I am not mistaken, an incredibly large 
percentage of all the dollars Americans spend on health care is spent 
in the last couple months of a person's life. So that means people who 
are 70, 75, 80, 85 years old who only lived in many cases 2, 3, 5, 7, 
10 months longer because of heroic, and serious, expensive medical 
procedures and undertakings, they--to put it in the negative sense--eat 
up a significant portion of all the money that is spent on health care.
  So if you want to be a sharp-pencil, eyeshade guy who is going to sit 
there and tap out just the raw numbers, you can say, now wait a 
minute--I think it is 26 percent in the last how many months?
  Mr. SIMON. Last few weeks.
  Mr. BIDEN. In the last few weeks of an individual's life, we spend 26 
percent of all the money we have spent in health care. If you are 
utilitarian, which is not a bad thing, per se, to be, and you say, 
``How can we help most people most of the time?'' we would say, ``OK, 
doesn't it make more sense to take that 26 percent that only keeps 
people alive a couple more weeks--doesn't it make sense to take that 26 
percent--and spend it on kids who are between the age of 1 day old and 
6 years old? Because if you get them on the right track then, their 
health is going to be maintained better their entire life. Or does it 
not make more sense to take that money and spend it on immunization 
programs? Will not more people, on balance, live longer if we did 
that?''
  And the answer is yes, it is true.
  But what is our Judeo-Christian ethic? We say we will do all we can 
to keep our parents and our grandparents, who have made this country, 
alive as long as we can within reason.
  The day these hearings started, there was a big front-page article in 
my statewide newspaper at home. It had nothing to do with Judge Breyer 
or the law. It had to do with health care and this issue.
  It quoted a man who had to spend $67,000, I think it was, out of his 
pocket above his health insurance to keep his grandmom alive an extra, 
I think it was, 6 days. I will put in the Record the exact article. But 
I think it was 6 days. So this reporter asked: ``Was it worth it for 
you to spend $67,000, hock your house, your car, get a second mortgage 
to keep your grandmother alive only another 6 days?'' Do you know what 
the man's response was? ``Yes, it was worth it to keep her alive long 
enough to see her great granddaughter born.''
  That is a value that does not lend itself to an economic analysis. I 
do not criticize those who say economically we should disregard that. I 
do not. But as a society, at least up to now, we have adopted a value 
system, and we who serve in this body are supposed to reflect that 
value system. Under our system, the value is it is worth paying a 
disproportionate amount of money to keep our parents and grandparents 
alive.
  I have been corrected. There is no amount of money listed in the 
article. They just imply there was a lot of money spent. So I do not 
know the exact amount.
  But what do we do? We have this new school of law and economics. They 
are a bunch of very bright women and men, and they are sitting in 
offices that look like ours and they are doing something worthwhile. 
They are trying to figure out how we deal with these major problems 
facing us.
  They have come up with a theory. The theory says: Look at the 
economic impact, and if it does not make economic sense, then--I am 
overstating it in the interest of time--then adopt a rule of 
interpretation. If the Congress did not specifically say we want to 
waste this money for this value, assume that they meant that if it does 
not add up economically, they did not mean it. That is what these 
interpretive rules are now. That is the direction they are going.
  Is it for a judge through interpretation to tell us here that just 
because it does not make economic sense it does not reflect a basic 
value?
  It is a basic value that the American people within this democracy 
have a right to say, ``Yeah, we're going to waste that money, if that's 
what you call it; yeah, we're not going to be economically sound, if 
that's what you call it, because it is important to us.''
  I spent 59 days in an intensive care unit hooked up to all those 
machines. I want to tell you something: Had someone walked in and said, 
``You know, from purely an economic standpoint, Senator, it doesn't 
make a lot of sense for us to be spending this exorbitant amount of 
money out of your insurance to keep you hooked up to all these 
machines. You have been hooked up 57 days. We are going to give you 1 
more day,'' I doubt I would have said, ``By the way, you are right. 
Where do I sign? This does not make economic sense, and my chances are 
not that good,'' which they told me they were not. ``Let me sign right 
here.''
  If they came to you and said, ``By the way, your''--child, husband, 
wife, your son, daughter, mother, father--``the prospects of us making 
it work for them are 30 percent and the cost is the following, you only 
have a 30 percent chance of keeping your child alive, do you want to 
hock your house to try?'' I wonder how many of you would say, ``Let me 
sit down with my wife and look at the economic impact of this. Yes, 
well, let me see, only a 30 percent chance, we have an equity of X 
amount in the house, we can sell it today at the market value of such 
and such. I think maybe it is not economically sound, so don't try.''
  That is not how we think. But that is how these folks think. They are 
not bad folks. They are not uncaring folks. They just see these massive 
problems we have--and they are--and they say we ought to look at these 
things from the lens of law and economics.
  That is OK as long as they are political scientists, as long as they 
run for office. I do not think anybody should not be able to go out in 
Davenport, IA, and Wilmington, DE, and say, ``Elect me because I 
believe in this new theory''--not new--``I believe in this theory that 
before I spend a dollar of your money, before I vote for anything, I am 
going to be satisfied it makes pure economic sense, whether it relates 
to the health of your children, whether it relates to your farm.''
  It does not make any sense from an economic standpoint to build those 
levies and dikes, in my view--I support building them, by the way, 
because I think it makes broader sense. It does not make economic sense 
to the folks in Delaware--we are going to let you have beach insurance 
to let you build all those houses on the beach. God sends those 
nor'easters every year, and every year it takes away all that sand. A 
couple years later it shifts it back. But in the meantime your house is 
gone.

  But I run for office and say, ``I am not going buy into any of that 
stuff. If it does not make pure economic sense, I am not going to vote 
for it. Elect me.'' I respect that. If that is what the people want, 
fine.
  But what I do not respect is a judge who sits up there on a dais, 
like you do, and when we make those imprudent economic decisions here 
in this body, saying, ``Now, let me look at this. I acknowledge that 
Congress may have done this. But the way I am going to do this is I am 
going to make a canon of interpretation. I am going to come up with a 
new rule of how I look at legislative language. And the rule is I am 
going to assume that Congresspersons would not possibly have passed a 
law that was not just purely economically sound. And so I am going to 
look at that statute. And it does not seem economically sound to me to 
do it this way, so I am going to assume that they must not have meant 
that is what they wanted.''
  What is the effect? The effect is the exact same if they disregard 
the statute. The effect is the right, the value, the thing that we, the 
elected officials, say we think is worth protecting at such and such a 
cost or any cost is wiped away.
  So my point is I questioned Judge Breyer a lot about it, because that 
is the new wave here; that is where the fight is going to be in the 
next 15 years on the Supreme Court--statutory interpretation. So I 
wanted to know whether Judge Breyer, who has written some things that 
were he running for office I would never vote for him--there is not a 
shot in the world I would vote for Judge Breyer if he were running for 
the U.S. Congress, Senate, and/or county councilman, because he wrote 
this book, and this book says theoretically this is how we should 
handle these very difficult problems.
  Well, I would like him as a political science professor, but I do not 
want him as a judge if he is going to take that little book--do we have 
a copy of the book? Bring the book down for me, please.
  If I walked into his class at Harvard and he had this little old 
book, ``Breaking the Vicious Cycle,'' sitting on his desk, I would say 
this is going to be a fascinating class. I am going to like this class. 
It is going to be interesting. Or if he ran for public office and he 
said the values I stand for are in this book, I vote no. If he is a 
judge and he sits there while he is judging and, figuratively speaking, 
has that book sitting at his right hand on the bench, I am not voting 
for him either.
  So I questioned him a lot about this little book--a brilliant piece 
of work by the way. I am not being facetious. It really is. It makes a 
very strong case for how we should more intelligently deal with these 
economic dilemma. And I think it is a serious contribution to the 
public debate. But it is a serious breach in my view, if he takes this 
book from the public debate to the bench and says, ``This is how I am 
going to rule. I am going to look through this prism, and I am going to 
interpret what Paul Simon and the rest of his colleagues did in the 
Senate based on whether it comports to the theories I put forth in this 
book.''
  So I spent a lot of time asking him about that, and I am convinced he 
understands the distinction between the theories in this book and what 
he is appropriately able to do as a judge.
  The one big safeguard--and I will yield now--the one big safeguard 
built in here is Judge Breyer has also written a lot on another item, 
on statutory interpretation. And he has written a lot--580 cases he has 
decided as a circuit court judge, many of them relating to this kind of 
issue as well.
  He has taught as a professor--one of the leading professors in 
America. He has judged--one of the leading judges in America. He has 
said, ``Look, I understand the congressional process. I understand the 
legislative process.'' And he does. He worked here. And he says, and he 
has shown, and he has argued, and he has debated with Judge Scalia and 
others, that we should let the people's will, their values--whether or 
not they make economic sense at the moment--prevail; that as a judge he 
has no right to take what he believes he would do were he sitting here, 
and superimpose that on what he will do from the bench like the one you 
are sitting at.
  And so after 22 hours of testimony, of him speaking, and after those 
500-some cases being read by me and/or a synopsis of them being given 
to me, I am convinced that there is a firewall between this, what I 
call economic elitism, and his judging and his view as to how he is 
obliged to interpret statutes here.
  I think he also revealed himself to be an enthusiastic and engaging 
interpreter of the law and Government, who understands that there are 
people behind every legal dispute, whether describing the thick coal 
columns supporting the cities and those who live in them above the 
surface of a mine, or in discussing a property rights case, or in 
noting that there is nothing more important to a family than the 
freedom to be able to pass on religious beliefs from one generation to 
the next, in discussing the first amendment's establishment clause.
  Whatever he discussed and whatever he has written about and whatever 
his life has been, it has always been formed by the impact on 
individuals.
  That is a very important ingredient for me. And it I think bodes well 
for all of us. These qualities will serve judge Steve Breyer very well 
on the Supreme Court. He has proved himself a thoughtful academic, well 
known to the Harvard community; a practical problem solver, well known 
to those who have worked with him here in Congress. He is a man who has 
unparalleled respect from those in his community, those with whom he 
has worked, and with those--and by the way, this is not cronyism. You 
have 18 members of the Senate Judiciary Committee, about half of whom 
have worked with Judge Breyer when he was on the committee, Democrats 
and Republicans. And one thing everyone--everyone--has spoken to who 
has worked with him, Democrat or Republican, is his fine temperament, 
his judicial temperament, his fairness, his equanimity and his 
brilliance.
  Mr. President, it is without any reservation that I recommend, after 
22 hours of hearings on the Senate Judiciary Committee, testimony by 
Judge Breyer and a number of witnesses, some who have testified 
against, some who were for, that I, without reservation, recommend 
Judge Breyer to this Senate and strongly encourage my colleagues to 
vote ``yes'' when the vote is called on confirming Judge Breyer to be 
an Associate Justice of the Supreme Court.
  I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa [Mr. Grassley], is 
recognized.
  Mr. GRASSLEY. Mr. President, I would ask to defer to the Senator from 
Illinois without losing my right to the floor for a period up to 3 
minutes.
  The PRESIDING OFFICER. Is there objection? The Chair hears none, and 
it is so ordered.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. SIMON. I thank my colleague from Iowa.
  Mr. President, I join the chairman of the Judiciary Committee in 
urging a favorable vote. I might add that being chairman of the 
Judiciary Committee is not an easy spot in these things, and Joe Biden 
does a superb job of chairing these hearings.
  Just several qualities. I speak with a little bit of prejudice 
because I have known Judge Breyer from back in 1973, a year and a half 
before I came to Congress. I had the chance to get acquainted with 
Judge Breyer and his family. In terms of fairness, I do not think there 
is any question he is going to do a good job. In terms of just 
intrinsic ability, as Senator Biden says, those who have worked with 
him up on Capitol Hill know that he has that ability.
  In terms of compassion, feeling for people, I think that is important 
so you do not make those kinds of economic judgments. But the chairman 
of the committee was talking about just on pure economics, and an 
indication of that is his daughter is an editor of a publication that I 
confess I never heard of before the hearing, called ``Who Cares?''--
trying to encourage those of us who are more fortunate to be helpful to 
those who are less fortunate in our society.
  Then finally, just one other point. It may seem like a small point, 
but I think it is important in the long run. That is, he writes with 
clarity. It is often discouraging to read a Supreme Court decision and 
wonder how the Justices reached a certain decision because the clarity 
is simply lacking. He is a wordsmith who writes with clarity. And I 
think he will add an important ingredient to the Court in that way.
  So I am pleased to support him. I think it is a good appointment, to 
the credit of President Clinton. I think he will bring credit to the 
Court.
  I thank my colleague from Iowa.
  Mr. GRASSLEY. Mr. President, I think and hope that I have applied a 
consistent set of criteria in evaluating the nominees to the Supreme 
Court. After making that evaluation, I have made the same determination 
that I did in the committee to support Judge Breyer.
  In this process, I consider whether the nominee exhibits the 
necessary intellect and integrity required of a Supreme Court Justice, 
and also whether that individual understands the role of a Judge within 
our constitutional system.
  Judge Steven Breyer has served as an appellate judge for 14 years. He 
has great knowledge of the law, and obviously, as he demonstrated so 
well before the committee, a superior intellect.
  I also believe that Judge Breyer has the integrity necessary for 
public confidence in the judiciary, and it is necessary for us to 
maintain that confidence. Integrity is an integral part of the 
credibility of the system. I think the committee properly inquired into 
matters that go to Judge Breyer's character. Some of those have been 
highlighted, and will be highlighted yet in this debate, particularly 
as they relate to some issues that Senator Lugar will be addressing.
  The committee investigated fully the nature of Judge Breyer's 
investments, and in all respects those investments were legal and 
ethical, as they related to Judge Breyer's official duties.
  I believe that our examination shows that Judge Breyer possesses the 
integrity required of a member of our highest Court.
  In his testimony, Judge Breyer addressed a wide range of legal 
issues. I was gladdened to find that he views the constitutionality of 
the death penalty as settled law, because the person he replaces has 
all of a sudden had a change of heart on that issue.
  Of course, on another matter, I am not pleased that he considers the 
right to abortion to be settled law. Regardless of these two issues, 
one I agree with him on, one I do not agree with him on, I recognize 
that a President--in this case, a newly elected President--has with his 
mandate from the people a right to select the nominee to the Supreme 
Court. Judge Breyer maybe would not have been nominated by a Republican 
President. I doubt if he would have been. But I do believe that a 
President, Republican or Democrat, is entitled to some level of 
deference, particularly if the person has integrity, judicial 
temperance, and the ability to read the Constitution and the law as the 
writers intended it. Then, as far as I am concerned, a President has 
deference who to select.
  Judge Breyer's constitutional opinions are good evidence that he 
generally practices judicial restraint. But in his testimony before the 
committee, he expressed a more expansive view of the Constitution than 
maybe I would like to have had him express. For instance, he testified 
that the

       Constitution was written to protect basic freedoms, which 
     are basic values, which are related to the dignity of the 
     human being. The dignity of the human being is not something 
     that changes over time.

  There are Judges who take this view that the Constitution protects 
human dignity, strictly in the abstract, you cannot find any fault with 
that. But there is connected with this premise a reasoning that is very 
expansive of the Constitution, way beyond what our writers intended, 
that anything, almost anything, that furthers human dignity is a 
constitutional right. I certainly do not read the history of our 
Constitution as being anything so expansive intended on the part of our 
writers. And I hope that Judge Breyer does not. But his testimony in 
this regard is cause for concern.
  I was more pleased with his response to my question on the issue of 
illegitimacy. I believe that the Court misinterpreted the Constitution 
when it held that classification systems that various States had prior 
to the sixties based on illegitimacy are normally invalid. The 
inability of the law to discourage illegitimacy in this way, I believe, 
has played a direct role in the increase of out-of-wedlock births in 
the last 25 years, and all those negative consequences that go with 
that.
  Judge Breyer told me that changes in the factual basis for the 
earlier decisions would be relevant to him if earlier precedents were 
challenged. There are now large amounts of sociological evidence that 
this trend in the family is creating a lot of social pathologies that 
have terrible human and economic consequences.
  So I am glad to hear what Judge Breyer said: that maybe the Courts 
could have been wrong in the sixties. I believe this is the first time, 
at least in my years in the Senate, that a Supreme Court nominee has 
testified that he would be open to overruling a particular line of 
constitutional decisions.
  Judge Breyer and I agree on another matter, that legislative 
history--this is something that Senator Biden addressed with great 
thoroughness--that legislative history is important in interpreting 
statutes. Judge Breyer agrees, but I am surprised that he views canons 
of construction so hostilely. Such rules allow courts to reach uniform 
decisions on the meaning of statutes. These rules also make sure that 
Congress does its job of legislating as clearly as possible, as we 
ought to.
  I do not think we give enough attention to that. But those rules 
discourage us, I imagine, from passing the buck on very tough social 
questions, maybe even economic questions, to the Court. Without these 
rules, the likelihood of judicial disagreement as to the meaning of 
statutes will increase, and so will circuit splits. I hope Judge Breyer 
will reconsider his view on this subject.
  During my questioning, I was concerned about some of Judge Breyer's 
record in the circuit court on the issue of child pornography. As a 
member of the sentencing commission, Judge Breyer was the only 
dissenting vote against a proposal to increase the base level offense 
for child pornography. And that made me wonder whether Judge Breyer was 
sufficiently committed to fighting child pornography. I wondered 
whether he knew of the harm that comes to children who are the victims 
of this crime, and I wondered whether he would accept the well-
established rule that child pornography is not entitled to any 
constitutional protection.

  I asked Judge Breyer at the confirmation hearing about his vote as a 
member of that sentencing commission. He told me that his vote against 
the motion to increase the base-level offense for child pornography did 
not rest on a view that child pornography was not a serious crime. 
Instead, he had a pattern throughout that process of the sentencing 
commission to apply a general sentencing principle to all crimes 
relating to base level for offenses. And once Judge Breyer explained 
his vote, my concerns were alleviated.
  Additionally, I am satisfied that Judge Breyer accepts the well-
established view that child pornography is not protected by the first 
amendment. And based on his answers at the hearing, those of us who are 
strongly opposed to child pornography, and the victimization of the 
child that goes with it, can be comfortable with Judge Breyer.
  Judge Breyer was asked by several Members--not myself, but I did 
follow up with a written question--about his view on home schooling. 
There was an attitude expressed at the grassroots that he is very 
hostile to a growing form of education in America called ``home 
schooling,'' although home schooling has been protected by the Supreme 
Court under the Constitution since the 1920's. In each of his oral 
answers, Judge Breyer stressed that the constitutional protection for 
home schooling was based upon the free exercise clause of the first 
amendment. In short, his answers based constitutional protection for 
home schooling on the right of parents to pass religious beliefs on to 
their children. He tended to answer those questions in the very narrow 
scope of a relationship of home schooling to religious freedom. Well, 
of course, this troubled me, as I stated, because thousands of parents 
educate their children at home for reasons unrelated to religious 
beliefs.
  Judge Breyer's oral answers, I think, might have been read to exclude 
constitutional protection for home schooling that is not based on 
religious belief, despite longstanding constitutional precedent to the 
contrary.
  So I submitted a written question to determine his view on whether 
all forms of home schooling are constitutionally protected. His 
response in the affirmative, which cited the relevant cases of 
longstanding and of a constitutional nature, satisfied me. I hope it 
will satisfy those out there at the grassroots who are concerned about 
that subject.
  I am also generally pleased with Judge Breyer's decision on 
constitutional criminal law cases. Judge Breyer has applied the law. He 
has not let criminals off based on a generalized sympathy for 
defendants. For instance, he does not interpret exceptions to the 
warrant requirement in a narrow way. Although some of my colleagues 
criticized Judge Breyer's opinion that permitted a warrantless search 
of a ceiling alcove adjacent to a motel room, even though the suspects 
were handcuffed, I thought he applied clearly established law. Under 
fourth amendment law, a search may be conducted incident to an arrest 
without a warrant. The police did that. While the scope of a search is 
limited to the reach of the suspect, the entire residence may be 
searched where there is a specified belief that dangerous conditions 
exist elsewhere in the residence. In this case, the fact that the 
police had a gun pointed at them that was unaccounted for provides 
those dangerous conditions, even if a suspect might have been 
handcuffed.
  So this case shows to me that Judge Breyer is within the mainstream 
in constitutional criminal law.
  Judge Breyer's criminal statutory opinions are a little more mixed, 
Mr. President. His decision in a case involving the meaning of 
``inhabitant,'' which I asked him about, is virtually a textbook model 
of how statutes should be interpreted. Judge Breyer examined the 
history of the statute; he examined the way the word was used at the 
time; as compared to language in other statutes; the purpose of the 
statute; and the fact that no source ever found that someone who 
planned to be in this country for only a few hours was an 
``inhabitant.''
  That whole series related to the interpretation of the word 
``inhabitant'' and how thoroughly Judge Breyer went on to evaluate it 
through legislative history, not just through wording in the statute. 
Judge Breyer properly evaluated the legislative history, refusing to 
credit statements of individual legislators that flatly contradicted 
the statutory language.
  On the other hand, Judge Breyer's decision in the Paleo case is 
troubling. There, Judge Breyer found that criminals could challenge 
their prior convictions that made them eligible for enhanced penalties 
under the Armed Career Criminal Act. This was true, he found, because 
the Government has no interest in punishing people for unconstitutional 
prior convictions. Judge Breyer thus engaged in a frequent technique 
that is used by judicial activists: he wanted to minimize the 
Government's interest in passing legislation so as to avoid the plain 
meaning of the statute.
  To me, in this particular instance, it is about as plain as plain can 
be. It is very clear. In essense, we said ``three previous 
convictions'' means ``three previous convictions.'' And the 
Government's interest in getting dangerous criminals off the street 
without those criminals delaying the imposition of enhanced sentences 
by challenging prior convictions, I think, is very substantial and was 
very substantial in this case.
  Judge Breyer reached his result in this Paleo case without addressing 
the fact that other enhancement statutes explicitly permit defendants 
to challenge their prior convictions. We in Congress know how to draft 
statutes that permit challenges and those that do not. He also did not 
address the Supreme Court cases that distinguish between the absolute 
denial of counsel and the ineffective assistance of counsel. And he did 
not discuss a Supreme Court precedent on a prior version of the 
statute.
  Judge Breyer's view of the statute was rejected by the Supreme Court 
in the Custis case in May. I hope that Judge Breyer will come to 
realize that the Supreme Court's interpretation of the statute was the 
correct one. His responses to my questions regarding Paleo do not 
provide me with very much comfort in this area, albeit maybe a limited 
area of criminal law. I stress the issue because of its importance to 
what we are going to be dealing with very shortly in the crime bill 
because of the ``three strikes" provision that is within that crime 
bill.
  Mr. President, in view of this nomination being before us and how I 
have discussed it, and all the considerations that have been brought to 
date, including my reconsideration of some points that Senator Lugar 
addressed and mailed to us and that we have read about in the media on 
his view on this, because I have a great deal of respect for Senator 
Lugar, I wanted to give those issues some further thought.
  But I still stay with a positive view of Judge Breyer, and even 
though I have some concerns that I have addressed here, I view this 
nomination with hope. I suppose my concerns are not related to the 
issues that Senator Lugar has brought up so much as there are some 
areas in some aspects of the law.
  But I think overall this nominee, at least for those of us on this 
side of the aisle, is much less of a judicial activist than we would 
expect for a President of the other party to nominate.
  For that reason, I want to vote for him in the sense that I do not 
consider him to be a judicial activist. So I support this nomination 
even though I do it with some reservation.
  After he gets on the Supreme Court, then I want to see more of the 
judge who wrote the 14 years of well-crafted opinions than the judge 
who testified about a so-called expansive view of the Constitution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. Mr. President, I wish to speak in opposition to the 
confirmation of Judge Stephen Breyer, and I would like at the outset of 
this statement to outline the case that I will make in order that 
Senators may follow the argument and then I will supplement these 
initial contentions with data from the press, from books, written on 
Lloyd's of London and in specific terms and correspondence involving 
Judge Breyer.
  Let me just say at the outset, Mr. President, as my colleagues 
pointed out in opening this debate, confirmation of a Supreme Court 
Justice is for a lifetime term. There are no further opportunities for 
reevaluation after the vote that we have at 3 o'clock this afternoon.
  Unlike our terms of 6 years and those of our colleagues in the House 
of 2 years, or many terms for Governors of 4 years, at that point there 
can be and are reevaluation of how things worked out not only in terms 
of our demeanor, but specific issues that come before the country.
  Clearly, the Founding Fathers saw a lifetime term as a basic point of 
the independence of the judiciary. I do not argue with that. I commend 
that. But I remind Senators that this is forever. This is for the 
lifetime of this nominee so long as he may wish to serve. Therefore, if 
there are reservations they need to be spoken now.
  The most important activity of a Justice of the Supreme Court is the 
exercise of good judgment in his deliberation and in his votes on 
issues before the courts.
  I will speak, Mr. President, to the issue of the good judgment of 
Judge Breyer this morning. That I think is a central point at issue.
  Furthermore, Mr. President, there are human predicaments in which 
past judgments and financial affairs of a candidate should preclude 
that candidate from seeking to perform a specific form of public 
service.
  My argument, Mr. President, is not that Judge Breyer lacks 
qualifications for significant public service. Indeed, the record is 
replete with that service, and many have commended it. But Judge Breyer 
is not necessarily entitled to this specific role of public service, 
that is a lifetime career on the Supreme Court, beyond reservation and 
reevaluation, given the facts of his judgment and of his investments, 
which I will outline in due course.
  Specifically, Judge Breyer is trapped in a troubled Lloyd's of London 
insurance syndicate from which he is unlikely to escape for a long 
period of time. It is beyond contention that the judge has been 
trapped, Mr. President. There is clearly an argument as to how the 
escape might be made and how either Judge Breyer's losses might be 
terminated or what are bound to be a long string of necessary recusals 
from various cases that will come before the Court, plus discovery of 
all of the ways in which Judge Breyer might have a conflict of interest 
in these cases.
  The judge's affiliation with the specific Lloyd's syndicate, Merrett 
418, will mean substantial personal financial losses for him and his 
family over several years and will force him necessarily to recuse 
himself from many cases that come before the Supreme Court of the 
United States involving insurance, pollution, asbestos suits, other 
issues, surrounding broad reinsurance of Lloyd's syndicates. He 
exercised extraordinarily bad judgment in signing documents that placed 
him under the jurisdiction of English law and exposed him and his 
estate to unlimited liability.
  I will go further into unlimited liability, Mr. President, but it 
means just what it says--unlimited, down to the last button, an 
extraordinary misjudgment for someone reportedly as astute, as 
intelligent, with a worldly view, as many of my colleagues have pointed 
out this morning, as he has looked at issues of commerce.
  He entered agreements with underwriters that he did not know, 
involving matters clearly beyond his expertise and perhaps beyond the 
knowledge of what the underwriters were doing and yet pledged to them 
unlimited liability of his resources.
  The growing troubles of Lloyd's of London should have been known to 
him as a sophisticated lawyer and investor. I make this point, Mr. 
President, because early in the debate this morning the distinguished 
Senator from Massachusetts, Senator Kennedy, has pointed out that 
Lloyd's of London was a pillar of strength, a remarkable institution, 
and clearly the many years of its history do bear out that general 
statement.
  But, Mr. President, by the early 1980's Lloyd's was troubled, and I 
shall point out circumstances occurring in the world, both in the 
United States and in England, that had already led to anxiety by those 
in Lloyd's and those who were investing in Lloyd's's about the future.
  Acceptable investment alternatives should have been known to Judge 
Breyer, if they were known to anyone, as specified under Section 455 of 
the United States Code, title 28. That, Mr. President, is the section 
that deals with conflicts of interest with recusal, with the very 
specific ways in which a judge must take a look scrupulously at his 
personal finances and those of his spouse and his children to make 
certain there can be no complaint of conflict of interest.
  Senators have asserted that Judge Breyer was not challenged by others 
demanding his recusal. But that is not the point, Mr. President. The 
obligation is on the judge. He himself must recuse himself. He must 
make the examination. This is not left to the good fortune of others 
who may discover a potential conflict of interest and demand conduct of 
the judge.
  Judge Breyer's examination of the insurance documents he signed with 
Lloyd's of London was negligent. His poor judgment now places him in an 
unnecessarily embarrassing predicament which erodes public trust.
  But, Mr. President, and this is the heart of my case this morning, 
whatever may have been Judge Breyer's faulty judgment, the problem now 
shifts to each of us who must vote on this nominee this afternoon. And 
Senators will have to bear in mind whatever else may be said in support 
of Judge Breyer, and his qualifications for service are substantial, 
each Senator who votes this afternoon should know that Judge Breyer has 
serious financial entanglements with the Lloyd's syndicate that will 
continue for years.
  The Supreme Court sits at the pinnacle of the United States court 
system, and that system contains thousands of plaintiffs in cases 
involving litigation over pollution, asbestos, insurance and investment 
failures. If the financial resources of insurance companies, including 
Lloyd's of London, are insufficient to meet claims and court judgments 
in the future, the only recourse will be a monumental court or 
congressional rescue of a failing international insurance system. I 
make that point, Mr. President, because that is fairly predictable.
  Senators have spoken this morning about the takings clause of the 
Constitution, about the ideas of property and person, about a number of 
issues, but issues that are clearly headed in our way in this body or 
to the Supreme Court are those involving the fact that claims still 
unknown, in addition to claims now known, add up to more reserves than 
international insurance companies appear to have.
  And specifically in the case of Lloyd's of London, officials there 
have been rather direct in anticipating what they call a congressional 
fix.
  Now, Senators ought to understand that, as we were thinking in 
humanitarian terms earlier this morning about individual plaintiffs who 
might face injury, the depiction they have in mind is that you cut off 
the liability, that you limit the exposure, that you save the 
reinsurance operation in the world by denying claims.
  The contention would be that judges and juries and courts and perhaps 
Congress in the Superfund legislation, various EPA statutes, simply 
went well beyond the bounds of the resources available for all of the 
things that we were attempting to cure. And so, a rather large amount 
of law is likely to be involved in this monumental undertaking which 
rumbles clearly through the court system of the United States. It is 
not only predictable, it is observable.
  Now, in the face of that, Mr. President, to confirm Judge Breyer to 
the Supreme Court, with this public knowledge that I am discussing this 
morning and will discuss for a while longer, that we as Senators now 
have of his financial quandary and of potential Supreme Court cases, 
that step would be imprudent on our part. My advice, respectfully given 
to the President of the United States, would be that he should have 
nominated someone else of equal qualifications as Judge Breyer--and 
such persons can be found in the United States--but who did not have 
the financial and very difficult investment baggage carried by the 
judge.
  I appreciate in a very poignant way this is a personal tragedy for 
Judge Breyer. His ambition to be on the Supreme Court is obvious and 
his qualifications are substantial. But there is no entitlement to 
serve in this specific capacity if one bears these specific burdens.
  Mr. President, I sent that outline to colleagues so they might 
examine it, and I hope they all have. But yesterday I issued another 
statement which begins to fill in a part of the outline.
  I said, Mr. President, after a series of U.S. court decisions in 
1980--and I cite 1980, Mr. President, because Judge Breyer's insurance 
underwritings as a Lloyd's name, as a person who shares in the 
underwriting of Lloyd's syndicates--these decisions of Judge Breyer 
took place between 1978 and 1988, in which apparently he attempted to 
terminate the relationship, unsuccessfully as I will point out, but he 
made that attempt. So between 1978 and 1988, on several occasions, not 
just in the final, fatal Merrett 418 syndicate, Judge Breyer was 
involved in signing his name to unlimited liability.
  But in 1980, U.S. court decisions found that insurance policies must 
be strictly construed in favor of the injured and to promote coverage. 
The Court of Appeals of the District of Columbia held that all periods 
of insurance coverage were liable from inhalation of the first harmful 
asbestos fiber to incidents of asbestos-related diseases 30 years 
later.
  That was a very significant decision, because this has led to what 
are known as the long-tailed liabilities of Lloyd's; long-tailed 
because the difficulty for the asbestos victim may be of 30 years' 
duration.
  And once the courts had ruled that you cannot simply cut off the 
victim after the first year and before, really, the totality of the 
damage is done, but, rather, all periods are involved, that changed the 
actuarial rules of the game very substantially.
  The California Supreme Court in 1980 had decided to shift the burden 
of proof from plaintiffs, who had been required to show that they had 
been harmed, to the defendant manufacturer. That is a very sizable 
shift. And in the case of Sindell versus Abbott Laboratories, 
plaintiffs were allowed to plead that they had been harmed by the drug 
DES, which had proved to be carcinogenic, even if they could not prove 
which manufacturer was responsible. The courts, therefore, were left to 
sort out who should pay and the period of exposure. The awards were 
very substantial from that exercise and occupied the courts in a very 
conspicuous way, Mr. President.
  A substantial share of the financial burden of these claims, and the 
claims from other cases similar to these that came along in those days, 
fell on Lloyd's of London under its broad reinsurance policies. Lloyd's 
of London came into play because it is the reinsuring agent.
  To take a very specific example, Mr. President, in the event that a 
company believes that it might have any kind of insurance liability and 
it insures with a company in the United States for that liability, as 
every commercial firm in this country must do, the insurance firm that 
takes that insurance may very well say, ``We want to potentially limit 
our losses. We don't want unlimited liability.'' And, therefore, they 
assign or they buy a policy for a premium from Lloyd's of London to 
cover everything, say, over $10 million or everything over $1 million, 
depending on the size of the firm. In short, the insurance companies 
went to Lloyd's, and Lloyd's wrote premiums for the most extraordinary 
of cases. It had a reputation of doing this for over two centuries.
  But if you should ask why should the asbestos cases or problems of 
DES have impacted upon Lloyd's of London or Judge Breyer, it is because 
the Lloyd's of London took the liability, and the Lloyd's of London 
files, like Judge Breyer, took on the liability, thus providing the 
capital with which the insurance company reached out to take on these 
cases.
  Now, American lawyers were quick off the mark and they were vigorous 
in pursuit of asbestos victims in particular, with some setting up x 
ray equipment, vans parked outside of factories, and others using 
direct mail to mention recent asbestos victim awards in the six- and 
seven-figure range.
  By the early 1980's--and I stress again the time period, Mr. 
President, because my point is that Judge Breyer, as a judge, as a 
sophisticated legal observer, as certainly a reader of the newspapers, 
would have been aware by 1980 that things had shifted markedly; the 
burdens to the company, not to the victim in terms of being a 
defendant; long suits, 30 years mentioned for asbestos in particular; 
long lines of attorneys, vans parked outside asbestos victims' places 
of employment. And by the early 1980's, U.S. courts have logged more 
than 25,000 asbestos cases awaiting hearings.
  Now, in the midst of all of this legal and insurance change and 
turmoil, Judge Stephen Breyer repeatedly--repeatedly--signed on as a 
Lloyd's name from 1978 to 1988, assuming, on each occasion and with 
documents clearly in front of him, unlimited liability ``down to the 
last short button,'' as the Lloyd's people point out.
  Furthermore, he signed documents acknowledging that British law would 
pertain in any disputes arising from his obligations, an unusual thing 
for an American judge, a sitting judge, after his confirmation in the 
late 1980's to the Federal bench, to do.
  In fact, the U.S. Court of Appeals for the Second Circuit ruled in 
1991, and I quote from the ruling of that court:

       Plaintiffs went to England to become members of a 
     distinctly British entity, invested in syndicates operating 
     out of London, and entered numerous contracts, all of which 
     stated plainly that Lloyd's affairs and plaintiffs' 
     investments would be administered in England and subject 
     exclusively to British law.

  That was a part of their judgment which denied Lloyd's name who now 
were injured and were suing trying to get relief and that was denied by 
the U.S. Court of Appeals for the Second Circuit.
  I would contend at the very least prudence would demand that a U.S. 
circuit court judge stop investing in such a troubled and complex 
enterprise. He should, instead, have followed section 455 of United 
States Code, title 28, which gives American judges clear guidelines for 
acceptable investments which do not get into conflict-of-interest 
allegations. And acceptable investments include mutual funds, for 
example.
  A Lloyd's of London underwriting with unlimited personal liability 
and a very specific field of endeavor, namely insurance or reinsurance, 
is not by any stretch of the imagination a mutual fund--or a prudent 
investment. Section 455 does not come close to this. Judges that have 
had much less exotic responsibility than Judge Breyer have understood 
section 455 very clearly.
  I contend that Members of this body, if not bound by section 455, 
ought to have a very clear understanding of what is involved here. I 
come at this debate this morning as a person who was involved in 
business and in farming. I am not an attorney. I have never consulted 
section 455 prior to this debate on Judge Breyer.
  But at a very early point--and I suspect that point arrived for many 
of us--as a candidate in the Republican primary for mayor of 
Indianapolis, I was advised, thank goodness, by people who had pretty 
sound judgment, that if I had any, even New York Stock Exchange 
securities, I ought to dispose of those--even the small number of 
shares that I had in General Motors because Alison Division was a local 
firm and I admired and respected and had worked for that firm in the 
summertime. I disposed of those because at some point someone would 
say, ``In your public judgments you are guided by the investment you 
have in a firm for gain. You have an equity position in a firm for 
gain.'' I disposed of those securities as a matter of common sense.
  I would say most judges have done so a long time ago. This is an 
exotic case, a sitting Federal judge signing Lloyd's of London 
underwritings for 10 years and finally getting caught in a disaster for 
him and, I believe, for us in terms of the involvement that continues 
on in this predicament.
  It has been suggested by some that no convincing explanation has been 
offered of how Judge Breyer's environmental rulings could have 
benefited him. But I suspect that is hardly the question. It is a much 
cleaner ethics situation than that. Judge Breyer has to find out in 
advance his investment situations and his potential difficulties. For 
us, at least, we must look toward the future, and the international 
situation hovering over Lloyd's is a very bleak future.
  This judge will not be out of Lloyd's for a long time, and as I 
pointed out earlier, the Supreme Court sits at the pinnacle of those 
difficulties.
  Mr. MURKOWSKI. I wonder if my friend would yield for a question?
  Mr. LUGAR. I will yield briefly to the distinguished Senator from 
Alaska.
  Mr. MURKOWSKI. I thank my friend from Indiana. I compliment him for 
bringing out the significance of that guarantee in the case of Judge 
Breyer.
  It is my understanding that the implications of the guarantee are 
unlimited, and could carry on beyond his lifetime and into his estate 
and his heirs, whatever the ultimate liability associated with the 
claims that are outstanding?
  Mr. LUGAR. The Senator is correct.
  Mr. MURKOWSKI. If I may follow up, could the judge transfer those 
assets that he currently has in his estate to his wife or his family to 
shield them from the possible claim? Or is that prohibited under the 
arrangement that he has with Lloyd's, covering the current guarantee, 
which I would assume may be joint and several?
  Mr. LUGAR. I would defer answer to that, really needing more legal 
advice of what the judge's options are. He has been exploring them 
substantially. But I am not certain what his research may be and I will 
not speculate on that.
  Mr. MURKOWSKI. But, if I may follow up, one might assume that Lloyd's 
would require a guarantee substantive enough to ensure that there was 
an actual claim on his assets or his estate, and he would not have the 
flexibility of simply transferring those assets, if indeed it appeared 
that those assets might be threatened?
  Mr. LUGAR. That is fully possible. Lloyd's has been aggressive in 
pursuing the amounts that are due under these reinsurance contracts. 
The courts are filled, really, with these suits.
  Mr. MURKOWSKI. And I would assume that one would recognize the 
significance of giving an unlimited guarantee associated with an 
investment. While, obviously, the potential return is perhaps 
significant and very difficult to measure, nevertheless a prudent 
person would consider the risks and the implications of an unlimited 
guarantee.
  Has there been or does the Senator from Indiana have any knowledge of 
Judge Breyer's explanation of why he, perhaps, did not think that this 
was as significant as the risk turns out to be?
  Mr. LUGAR. To my knowledge, the judge was not asked during the 
committee hearings or in any literature that I have seen.
  As I will point out as I proceed through my speech, an article by Mr. 
Jim Glassman of the Washington Post drew my attention, and perhaps that 
of other Senators, to the nature of this investment and how imprudent 
it appears.
  Mr. MURKOWSKI. I thank my colleague from Indiana for allowing me to 
interrupt his presentation. I am very concerned about this as well, 
because I think it shows where the judge perhaps became an insider in 
this investment, as is often the case where you depend on other 
sophisticated partners to guide you. Nevertheless, one would expect a 
nominee to the Supreme Court to have that extra perception to 
understand the implications of an unlimited guarantee. I look forward 
to hearing my colleague's continued evaluation of this.
  I do want to say this Senator from Alaska is very uneasy about this 
nominee, not on the basis of his qualifications on the bench or his 
record on cases, but because of the lapse of judgment associated with 
entering into an agreement involving unlimited liability. Having been 
in the banking business a long time I can tell you, once you give your 
unlimited guarantee you have given it until the obligation is 
satisfied. And if you are on joint and several, it does not make any 
difference whether there are four or five others. One might think you 
would have to share proportionately. They can go after your assets and 
exhaust them in any manner or form. And of course that may affect the 
judge having to recuse himself on issues before the Supreme Court.
  It is a very troubling issue. I commend the Senator from Indiana for 
the depth of his analysis. I wish him well.
  Mr. LUGAR. I thank the Senator. Mr. President, while on that subject 
the Senator from Alaska has raised, let me just point out that Judge 
Breyer's unlimited liability pertains only to precisely his share of 
the underwriting.
  White House counsel has pointed out it is approximately one-five-
thousandths of the Merrett 418 syndicate. Even though it is unlimited 
for that one-five-thousandths, he at least does have that limitation.
  Likewise, White House counsel has pointed out that Judge Breyer has 
stopped loss insurance as deposits on tap there with Lloyd's 
anticipating losses and that Tetsat, the accounting firm in Great 
Britain that tries to make estimates of what kind of long-tailed losses 
are going to occur, estimated that Judge Breyer's losses will be 3\1/2\ 
to 4 times what they have been at the present time, based upon their 
best guess, which takes him up somewhere around $180,000, in the worst 
case scenario that the White House sees.
  The dilemma is that the White House may not have seen far enough. The 
common idea cast about, not in hearings but I think informally among 
Senators, is that Judge Breyer is going to work very hard to get 
himself out of this predicament in 1995, next year. Indeed, there is a 
firm or an idea of a firm called NewCo, which is to be a vast 
reinsurance firm in which those who are in a predicament like Judge 
Breyer try to fence in the dilemma. It is a Lloyd's idea because they 
are finding it very difficult to get investors for the future, with the 
thought that reinsuring and rolling over all of this means a 
compounding problem for them, literally a snowball out of control.
  The dilemma for Judge Breyer specifically, and for the American Names 
who are active along with Judge Breyer, and others, is that it is 
doubtful that those who have a stake in this will want to invest that 
much more money in reinsurance to stake out the unknown. In other 
words, how could these investors have any idea ultimately of the last 
asbestos suit or the last Superfund suit? As a matter of fact, they do 
not.
  Senators ought to understand that. There has been a rather bland 
assurance by White House counsel and by others soothing about Judge 
Breyer's predicament that he really cares about this, and he sure does. 
He got out in 1988, and I will recite a letter in my testimony shortly 
from Judge Breyer to his agent in London--trying to figure out what in 
the world to do--last December long before he came to this nomination.
  But he has a horrendous problem because the nature of reinsurance is 
that you keep trying to reinsure the unknowable. As the flood waters 
come up over the dike, you have to reinsure again. The problem for 
Lloyd's is there may not be, in all of Lloyd's, enough reserves to face 
the claims that are on the horizon for them.
  That is what led me to make a comment which really requires a lot 
more explanation. Lloyd's, and many other people in the insurance 
business, are looking to this body--us--in addition to the Judge 
Breyers of this world, and the Court, for a fix. How do you ever stop 
the flood set in motion by the number of suits that are out there, as 
well as those still to come?
  Mr. MURKOWSKI. Mr. President, one would assume, if I may just follow 
up on the point of reinsurance, if the judge were successful in 
attempting to negotiate some type of reinsurance, his personal 
guarantee, unlimited as it is now, would follow because they certainly 
would take no less than what they have now, and that is an unlimited 
guarantee.
  So the judge would not be getting out of the extended liabilities 
associated with this unlimited guarantee.
  Mr. LUGAR. When the reinsurance scheme fails, you are back to square 
one again with Merrett 418. The idea is that somehow this is fixable. 
The judge has explored, as we know, on public record, various ways of 
trying to buy out of the situation; one scheme for $250,000. I have 
correspondence from Mr. Rosenblatt of the American Names, which says it 
might cost the judge $1 million. But even then, you do not know, until 
these long-tailed claims have come in, whether the reinsurance thing 
itself failed.
  Mr. MURKOWSKI. Who would want to buy out the judge's position for a 
million dollars, and be saddled with the unlimited liability associated 
with the guarantee, which is an ongoing unlimited guarantee? No one 
would buy that unless there was a tremendous price paid for it.
  Mr. LUGAR. Mr. President, that is why I come to the conclusion that 
the analysis of how Judge Breyer is going to get out of this has almost 
the same faults as Judge Breyer's analysis of getting into it.
  This is one of these horrendous predicaments overtaken, and I cited a 
few cases of how the law changed. The defendant became the firm, not 
the plaintiff or the individual person who is suffering. We took a 30-
year view of liability, not a very short run. The courts simply found, 
in fact--and the most conspicuous failure clearly known to Judge Breyer 
was the bankruptcy of Johns Manville in 1982. That really opened it up 
for the world. It may have been an insider game before that time. Johns 
Manville, a very large American corporation, went under and is still 
under. Lloyd's of London is almost going to go under because of the 
Johns Manvilles of this world, and everybody else involved in these 
sorts of businesses.
  When we passed Superfund, we set in motion a whole series of 
predicaments that ricochet out there, and will do so for a long time.
  In this body, we are discussing reform of Superfund. Reform gets to 
some of these issues: How do you cap the losses and the liabilities 
that are out there? Hard to do, as the papers are replete with stories 
of how it is hard for us, the 100 of us, to renegotiate that very 
important point.
  Let me say, for most Members--and I would acknowledge these articles 
specifically--the Lloyd's Superfund business came to our attention in 
two articles in the Washington Post, one by Mr. Benjamin Weiser in the 
June 17, 1994, edition in which he entitled it: ``Lloyd's of London's 
Big Losers, Some American `Names' Face Financial Ruin.''
  Very specifically, Judge Breyer's predicament came to our attention 
in an article in the Washington Post of July 20, 1994, written by James 
K. Glassman, entitled, ``For High Court Nominee Breyer, an Injudicious 
Investment.''
  Mr. Glassman, in his summation, said:

       But something about Breyer worries me more. How smart and 
     judicious can someone really be if he invests in a mess like 
     Merrett 418? Is he dumb or merely oblivious? Or does he just 
     love to gamble with his family's fortune? Also, imagine the 
     prospect of a Supreme Court Justice facing bankruptcy because 
     of Superfund and asbestos claims. Even if he recuses himself 
     from such cases on the High Court, he'll be embarrassing not 
     only to himself but the institution.

  Mr. President, in favor of Judge Breyer, I will say, at least on 
paper, his net worth and that of his wife is apparently in the $6 
million to $8 million range, we are advised. White House counsel has 
said, surely even if the judge's payments to Lloyd's mount upward and 
upward and go on for years, he is not going to run through $6 million 
or $8 million. I have no idea, as the distinguished Senator from 
Alaska, how the Breyers have arranged their affairs as to the liability 
of family members in this respect.
  My question is not the bankruptcy of Judge Breyer, and I pray that 
will never come to pass; it is the judgment of the judge, his judgment 
that we ask of somebody on the Supreme Court of the United States, and 
preferably not a judgment entangled in any way by the monumental 
looming problems of Superfund and the asbestos claims.
  The New York Times, in its lead editorial of June 26, 1994, just this 
week, starts out with a headline: ``A Cloud on the Breyer Nomination.''
  The New York Times editorial said:

       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 3 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.''

  Mr. President, members of the Judiciary Committee have cited a number 
of legal scholars who wrote to the committee, I presume at the 
invitation of the committee, to discuss the ethics of Judge Breyer.
  But not all of those legal authorities reached the same conclusions. 
I wish to read from the letter written to Chairman Biden on July 13, 
1994 by Prof. Monroe H. Freedman, Howard Lichtenstein Distinguished 
Professor of Legal Ethics at Hofstra University.
  He says:

       Dear Senator Biden. As one who has worked in the field of 
     lawyers' and judges' ethics for almost three decades, I write 
     to oppose the confirmation of Judge Stephen Breyer as a 
     Member of the Supreme Court. My opposition is based upon 
     Judge Breyer's violation of the Federal Disqualification 
     Statute, 28 U.S.C. Section 455.
       We have heard much in recent years about a ``litmus test" 
     for judges. The reference has been to the nominees' positions 
     on substantive issues, and the test has fluctuated with the 
     politics of the moment. If there is one test that should be 
     constant, however, it is that the record of a nominee for 
     judicial office should not be tainted by a serious violation 
     of judicial ethics. Judge Breyer fails that test.
       The Federal disqualification statute (Section 455) was 
     enacted by Congress to ensure respect for the integrity of 
     the federal judiciary. Discussing the statute in the 
     Liljeberg case, the Supreme Court said that ``We must 
     continuously bear in mind that to perform its high function 
     in the best way `justice must satisfy the appearance of 
     justice.'''
       The problem, the Supreme Court explained, is that ``people 
     who have not served on the bench are often too willing to 
     indulge suspicions and doubts concerning the integrity of 
     judges.'' Section 455(a) was therefore adopted to ``promote 
     confidence in the judiciary'' and to eliminate those 
     ``suspicions and doubts.''

  Let me just say, Mr. President, the professor continues:

       I have quoted at some length from the controlling Supreme 
     Court cases * * * because, so far, they have been virtually 
     ignored in these hearings.

  He is speaking of the judiciary hearings and is speaking of the cases 
Liteky, Liljeberg, Tumey, Murchison, and Lavoie.

       Neither Professor Stephen Gillers nor Professor Jeffrey 
     Hazard--

  These were also professors who wrote to the Committee--

     discussed these cases in their letters to the Committee in 
     which they conclude that Judge Breyer did not violate the 
     Statute.
       Judge Breyer was a member, or Name, in the Lloyd's Merrett 
     syndicate 418 in 1985, insuring asbestos and pollution 
     losses. His exposure to liability continues to this day. As 
     of 1993, the total losses on that account were $245.6 
     million. Other Names have had their fortunes wiped out in 
     total in Lloyd's liability $12 billion. For years, therefore, 
     the Names have been understandably generated.
       The New York Times has described Judge Breyer's membership 
     in Lloyd's as ``A tricky investment.'' Although Judge Breyer 
     has assured this committee that he will get out of this 
     membership as soon as possible, this is a questionable 
     pledge. He himself has testified he has been trying to 
     extricate himself for years. And according to Richard 
     Rosenblatt, who heads a group of hundreds of American Names 
     who are ``afraid of being wiped out,'' it would cost Judge 
     Breyer more than $1 million to insure himself against his 
     personal share of the syndicate's losses. Even then, he would 
     remain liable if his insurer could not pay.
       Judge Breyer and the White House have assured this 
     committee and the public that Judge Breyer's reasonably 
     anticipated liability is negligible. And the ethics experts 
     who have ``cleared'' Judge Breyer base their opinions on just 
     such misleading assumptions. As Professor Hazard says, he was 
     told to assume that Judge Breyer's possible losses are well 
     within ``stop-loss'' insurance coverage that the Judge 
     already has. For similar reasons, Professor Gillers has 
     commented that his own opinion is ``rather narrow.''
       But consider Mr. Rosenblatt's estimate that insurance 
     coverage of Judge Breyer's liability would cost more than $1 
     million. That reflects the calculation of hardheaded 
     actuaries, not overly optimistic politicians eager to 
     minimize the true dimensions of the judge's difficulties.
       Having said that, let me emphasize that my opinion does not 
     depend upon the precise size of Judge Breyer's liability. As 
     Professor Hazard said in his opinion, the business of 
     insurance is complex, sometimes controversial and ``widely 
     the subject of public concern and suspicion.'' Unfortunately, 
     Professor Hazard did not recognize that his own description 
     of Judge Breyer's position as an insurer echoes the Supreme 
     Court's description of the purpose of Section 455--to avoid 
     public ``suspicion and doubts.'' Predictably, and properly, 
     ``public concern and suspicion'' have been focused on the 
     integrity of the judiciary because of Judge Breyer's failure 
     to disqualify himself when the statute required him to do so.
       But under Section 455(c) of the Disqualification Statute, 
     the Judge had an absolute responsibility to inform himself 
     about his personal * * * financial interests * * *. Thus, the 
     bizarre defense of Judge Breyer is that he violated his 
     statutory duty to know the details of his personal financial 
     interest, and therefore he didn't violate his statutory duty 
     to disqualify himself.
       In fact, Judge Breyer did violate the statute in failing to 
     disqualify himself. Take, for example, United States v. 
     Ottati & Goss, Inc. Two years after Liljeberg explained the 
     broad scope of Section 455(a), Judge Breyer failed to 
     disqualify himself from Ottati & Goss--even though the case 
     involved the Environmental Protection Agency's powers to 
     impose liability on polluters like those the Judge knew he 
     was insuring.
       In Ottati & Goss, the issue was whether the EPA could 
     impose remedies against polluters, subject to judicial 
     revision only on a finding that the EPA had arbitrarily and 
     capriciously abused its powers. Lower court decisions were 
     split on the issue. A decision by the First Circuit would be 
     an important precedent.
       Judge Breyer expressly recognized this in his opinion in 
     Ottati & Goss, saying the case raised a question with 
     ``implications for other cases as well as this one.'' And he 
     said again: ``The EPA's * * * argument [has] implications 
     beyond the confines of this case.''
       That was enough to require Judge Breyer to disqualify 
     himself. In effect, he was in the position of deciding his 
     own case, or, at least, of setting a precedent that could 
     affect his own liability.

  And I quote the professor further:

       How the Judge ultimately decided the case has no effect on 
     his duty to disqualify himself. His decision in Ottati & Goss 
     compounds the appearance of impropriety that the Statute 
     forbids, because the Judge wrote an opinion weakening the 
     power of the EPA to impose liability on polluters. And his 
     opinion predictably has been influential, causing the EPA to 
     change its own regulations.

  Now, Mr. President, I will not go through the additional analysis of 
the professor. But let me just say that one other point I suspect needs 
to be made about the nature of Judge Breyer's investment under Section 
455, and I quote Professor Freedman further:

       Another contention is that the Judge's membership in 
     Lloyd's is ``analogous'' to being an investor in a mutual 
     fund, therefore exempt from the statute under 455(d)(4). 
     There are two important differences between being a Name in 
     Lloyd's and being an investor in a mutual fund. One is that 
     the mutual funds are typically highly diverse. But Lloyd's is 
     solely involved in insurance, and the Judge knew that one or 
     more of his insurance liabilities related to environmental 
     pollution. Another major difference is that an investor in a 
     mutual fund cannot lose more than the principle invested. In 
     Lloyd's, on the contrary, one's entire fortune is at risk, as 
     hundreds of Names have been found to their dismay in recent 
     years.

  In a rather colorful description, Mr. President, of this predicament 
Lance Gay writes in the Washington Times of today, July 29, 1994, a 
lead paragraph:

       Here is a deal of a lifetime. I dug a large hole in my 
     backyard and invited friends and strangers alike to come and 
     throw all of their savings and deeds and their homes into it. 
     The best investment opportunity you will find, too good to 
     pass up, Lloyd's of London, and just your cup of tea. All you 
     have to do is commit all of your worldly belongings to 
     Lloyd's, and you can become a Lloyd's name and member of one 
     of the most exclusive clubs.

  I point out that it has become a lot less exclusive throughout the 
1980's. As a matter of fact, the cachet attached to that was 
irresistible. And the Lloyd's names rose to over 30,000. They are 
disappearing by the thousands as rapidly as people are able to jump 
ship fully knowledgeable that they are unable to explicate themselves.
  Mr. President, all of this, of course, comes to Judge Breyer's 
attention at various stages. He wrote on December 13, 1994, last year 
to the Director of L. W. Stearns, Limited, who served as an agent for 
Judge Breyer apparently with regard to his more recent Lloyd's under 
writings.
  Judge Breyer is asking first of all if it is possible for the agency 
to release the letter of credit, that he deposited 5,000 pounds already 
in Lloyd's hoping that somehow that this can release, as he puts, more 
money. But the poignant paragraph is on the second page, fourth 
paragraph. I quote from Judge Breyer's letter to them.

       What are the prospects of my leaving Lloyd's? I resigned in 
     1987. My reasons * * * are related to my job, namely, Federal 
     Judge, and the disqualification that membership requires, to 
     any Lloyd's losses (for there then seemed to be none) yet, 
     apparently--

  In Judge Breyer's language--

     I am captured for the rest of my life, despite the small 
     likelihood that losses will exceed my stop loss. Is anyone 
     proposing to do anything about this kind of problem? Should 
     it not be possible, for example, to buy a reasonably priced 
     policy promising to pay any excess liability arising say a 
     decade from now over and above my 125,000 pound stop loss 
     coverage, and, having done so, leave Lloyd's? I should very 
     much appreciate any help you can give me with these 
     questions. Since I must respond about the settlement offered 
     before the end of January, I should be particularly grateful 
     for a speedy reply.

  The poignant aspect of this are not only Judge Breyer's difficulties 
here, but it is the fact that he really does have a situation he still 
does not apparently understand.
  Let me, Mr. President, try to bring more understanding of that.
  I received a letter from the law firm of Robbins and Keating, Mr. 
A.R. Robbins, writing this letter, and he writes:

       Richard Rosenblatt, the President of the American Names 
     Association--

  That is Lloyd's name.

     Requested that I send you a copy of the Lloyd's of London 
     General Undertaking required to be signed by Names of Lloyd's 
     during the 1983-1988 period by the justice bars and 
     underwriting members. The attached form was adopted by the 
     Council of Lloyd's, the governing body, for application in 
     1987 underwriting years, and subsequently all names required 
     to sign the document, as well as the standardized document, 
     or to continue or to commence underwriting at Lloyd's for the 
     1987 underwriting year, and subsequent * * *.

  And so forth.
  In the course of this letter, Mr. Robbins points out:

       Once committed, the name cannot cancel or withdraw from 
     these commitments until they are paid, adequate reserves are 
     fully reinsured. If reinsurance, however, cannot be provided 
     with specific syndicates in which named participant pays, 
     then it must remain open until the claims run off; until they 
     are paid, which may take many years, and involve very large 
     liabilities, specifically if the syndicate had inherited 
     reinsurance of old policies which were written on a current 
     basis with unlimited liability, and with the agent of the 
     Lloyd's policies--

  That is, an agent of policy; broad language.

     construed to cover asbestos, and long-tailed claims which 
     date back as early as 1939. It has been reputed that 
     Merrett is meritorious to respond to one of the worst 
     syndicates. These provisions are intended to operate in 
     tandem to deny U.S. names access to U.S. courts giving 
     them recourse only to the courts of England.

  As I point out, Mr. President, the remedy for Judge Breyer, 
therefore, does not lie in the courts of the United States. It lies in 
England. But still it is a very unusual thing for an American judge to 
sign with some sophistication, at least in the American system.
  Mr. President, let me quote from a letter dated July 13, 1994, by Mr. 
Rosenblatt of the American Names Association. He says:

       I have no personal opinion as to whether or not Judge 
     Breyer should be confirmed by the Senate. The purpose of this 
     letters is to clarify some misunderstandings about Lloyd's. 
     There are few people in this country, or anywhere else who 
     understand Lloyd's and the calamity which has befallen the 
     entrapped innocent American Names. It has been said that 
     there are two kinds of Names: those who are ruined, and those 
     do not know they are ruined. Possibly, Judge Breyer falls 
     into the latter category.
       His statement tend to show that he doesn't understand the 
     nature or scope of his predicament. According to the New York 
     Times he stated that he can get out and that he ``in February 
     * * * wrote to lawyers in London emphasizing his strong 
     desire to get out Merrett 418, saying he wanted to avoid 
     syndicates involved in American tort liability * * *''. He is 
     in for life, and his heirs are in unless something is done by 
     U.S. courts, regulatory bodies, or legislation.

  Mr. President, back to the fixes that I have indicated earlier on, 
widely contemplated by many:

       The American Names Association, of which I am Chairman, has 
     almost 700 members, and all are in the same dilemma as Judge 
     Breyer, with the exception that they understand the nature of 
     their dilemma. There is no way to get out of Merrett 418, or 
     any of the other hundreds of open years syndicates. There 
     are, inside Lloyd's, some schemes where, ostensibly, a Name 
     could buy unlimited reinsurance for an extremely high price. 
     The problem with this is that the syndicate which might sell 
     such insurance may be himself in danger of collapse, as is 
     all of Lloyd's. In that case, Judge Breyer would find itself 
     back with all of his unlimited liabilities for the rest of 
     his life, is children's lives, and so on, having also lost 
     the cost of this expensive reinsurance. One does not get out 
     of Lloyd's by dying, as the estate remains liable. Bankruptcy 
     would be the only sure way to get out of Lloyd's.
       Judge Breyer has referred to the possibility of getting out 
     in 1995.

  Judge Breyer is not the only one. Lloyd Cutler, White House counsel, 
and other persons are trying to reassure the Senate that 1995 is the 
time to finally bring an end to this.

       This would be in connection with a scheme developed by the 
     brokers and agents who have gained control of Lloyd's, and 
     which is called ``NewCo''.

  I would point out, Mr. President, that Lloyd's no longer is entirely 
financed by these unlimited liability names, like Judge Breyer. But, in 
fact, one-sixth of the capital now comes from corporations who have 
prudently taken limited liability. So you have this odd mixture of 
corporations with pretty hardheaded managers limiting their liability, 
along with the amateurs, the names.

       This is a theory that the worst hit Names would deposit 
     large sums of money in order to form a ``ring fence'' around 
     all of the old open syndicates, and then this entity would 
     take care of all of the losses up to that time. It is a 
     fantasy that the worst hit Names would be in a position to 
     voluntarily raise the kind of money which would cover all of 
     the asbestos, pollution, product liability, and all of the 
     possible losses from the past, which could amount to hundreds 
     of billions of dollars. The principal beneficiary of such a 
     structure, would be the future members of Lloyd's,

  They would be the beneficiaries,

     rather than those making this gigantic sacrifice. The theory 
     is not practical, and has been raised purely to satisfy 
     current needs to get past Government authorities, and to 
     impress gullible future investors.
       Lloyd's was opened up to American investors, purely to 
     shift unquantifiable future losses away from the insider 
     controlling group. Our organization--

  In speaking of the American Names,

     has accumulated tens of thousands of documents which prove 
     that Lloyd's has become a giant ponzi, which includes 
     misrepresentation and multi-level marketing schemes, all of 
     which violate our state and federal securities laws as well 
     as insurance laws.

  I make that point, Mr. President, and I underline Mr. Rosenblatt's 
rather poignant plea, as one of the Names, to point out that the idea 
cast about this Senate debate that an investment in Lloyd's was a 
sound, prudent investment, is disastrously wrong. Members really need 
to understand the nature of that type of a situation.

       Lloyd's enjoys immunity--

  Mr. Rosenblatt continues:

     from suit by Act of Parliament. Americans did not know, and 
     were not informed by Lloyd's. Our organization is commencing 
     a lawsuit in the U.S. challenging the fraudulent nature of 
     these agreements. This case may well reach the Supreme Court.
       The problem with Marine Syndicate 418--

  and the one the nominee belongs to,

     stems from the fact that it is not really a marine syndicate. 
     It is a ``long-tail'' syndicate, which means it may be many 
     years before the true nature of the losses will be known. 
     Since there is no way for a Name to get out of these latent 
     liabilities, short of bankruptcy, the situation is termed 
     ``unquantifiable loss.''

  Mr. President, in the course of this statement, I have tried to 
establish that I doubt the good judgment of Judge Breyer when I survey 
the wreckage that I have laid before the Senate this morning. But it is 
not simply a personal tragedy for Judge Breyer, of which he may still 
not understand the nature of his dilemma; if Judge Breyer is naive, we 
as Senators have a responsibility for something more. The bland 
assurance that Judge Breyer invested in a sound institution--Lloyd's of 
London--and has some bad luck, Senators have pointed out that we have 
all had investments that did not work out. Who here has guessed right 
all the time? This was not simply an unsound investment, or two or 
three; Judge Breyer signed away everything--unlimited liability--in a 
foreign land, subject to foreign law. And now, as I have quoted from 
his letter to his agent last year, he wonders what can keep him from 
being a captive to this situation forever. A very tough predicament for 
an American judge.
  I have cited Professor Freedman's testimony that there is at least 
contention by some legal counsel that Judge Breyer already violated 
section 455. In any event, if he were to come onto the Supreme Court, 
he has a rigorous job of scholarship to do. He must find out what all 
Merrett 418 does, in short, very broadly, and how many cases are coming 
through the courts and through appeals now that are touched by that. He 
has an absolute obligation to do that. I simply ask, is it useful for 
the Senate to confirm somebody who must recuse himself from a 
substantial body of law and judgments? Would it be useful for the 
Members of the Senate to come to the Senate burdened with situations, 
and on the first day recuse themselves from votes on this floor? That 
is not very substantial representation for our States, and I contend 
that Judge Breyer must give some thought to whether he can give really 
a full measure of devotion to the task he seeks.
  Finally, Mr. President, I come back to my plea that even at this late 
date, the President of the United States surely ought to consider the 
record that is before us. If Judge Breyer made difficult judgments, 
they are in the past. We must make a difficult judgment today. Senators 
cannot claim that they did not know of all of this. For at least the 
past hour, I have tried to recite it in the most concise way that I 
can. I cite to Senators the book, ``Ultimate Risk,'' by Adam Raphael. 
Unfortunately, it was published only recently in London and is not 
available, I gather, to most Senators. But, clearly, it is a book that 
goes definitively into the Lloyd's problem and specifically the 
dilemmas facing Judge Breyer.
  I am hopeful that even if Senators read ``Ultimate Risk'' after the 
vote, they will be knowledgeable about what we face, because the 
problem is not just Judge Breyer, it will be the Senate and the 
catastrophes and Superfund and all of the case law involving asbestos 
claims and all of the problems of reinsurance that are coming along the 
trail. They are going to hit us as well as the Court. I hope that when 
they do, the team on the field is able to enter with clean hands, 
without allegations of conflict of interest, and certainly with more 
confidence in the judgment of the American people.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. DeConcini). The Senator from Pennsylvania 
[Mr. Specter] is recognized.
  Mr. SPECTER. Mr. President, the Senator from Indiana has given a very 
detailed statement on his concerns. When the Senator from Indiana 
speaks in this Chamber, he is listened to very carefully. Although I 
could not be here for the opening of his presentation because we had a 
caucus on the health care legislation, I was here for most of his 
presentation. I am on the Judiciary Committee, and I did hear Judge 
Breyer's testimony, including the closed session. There are a few 
comments which I would like to make in response to what the Senator 
from Indiana has had to say.
  I think that, fairly, Judge Breyer has to be evaluated on the 
totality of his record. He has to be evaluated on his academic record, 
which is outstanding--Stanford and Harvard Law School. He has to be 
evaluated on the basis of his work with the Law Review at Harvard, his 
scholarly writings in law journals, his books, and his work for the 
Judiciary Committee, where he came into personal contact with many 
members of the committee--not this Senator, because I was elected in 
1980, his last year of service--and then his work on the court of 
appeals for the first circuit. I have read many of his opinions, and, 
in my judgment, he is a very, very distinguished legal scholar. So that 
his activities with Lloyd's of London and the investment which the 
Senator has detailed, I think, fairly have to be considered in the 
total context of his record, which is extraordinary in terms of 
scholarship, ability, and intellectual capacity.
  On the issue of prudence, we must consider that Lloyd's of London has 
had a very profitable 300-year history, but as the Senator from Indiana 
has outlined in his account, there have been losses. A question arises 
as to what could be anticipated by someone like Judge Breyer, who made 
an investment.
  The laws on asbestos were unfolding and Johns Manville was a big red 
flag. But what was a man in Judge Breyer's position to know about the 
specifics of Lloyd's investments, or what was he to inquire upon?
  When you talk about the Superfund law, which the Congress passed in 
1986, if someone made an investment in the late 1970's and into the 
1980's, it is hard to figure out what the Congress will do next. We 
ourselves do not know what we will do next. So that when liability is 
imposed as a result of Superfund, which imposes liability going far 
beyond the time of an investment, really on the land itself, how can 
Judge Breyer's prudence be questioned for not anticipating what the 
Congress of the United States would do at some future date?
  Judge Breyer testified to this effect:

       When I went into Lloyd's, I viewed it as a very 
     conservative investment in which in fact you were exposed to 
     insurance companies that sell and insure and buy anything in 
     the world.

  He went on to say:

       As a practical matter and as a theoretical matter, I 
     believed, and I still believe, that my risks and benefits 
     would consist of several thousand dollars of income each 
     year, and sometimes several thousand dollars. By that I mean 
     under $10,000 or $12,000, certainly possibly having to write 
     a check. There was a deposit at Lloyd's that possibly was 
     even meant for the worst case that went up to about $150,000.

  As the Senator from Indiana has stated, the liability of Judge Breyer 
is one five-thousandths of what would happen to his Lloyd's syndicate.
  There has been a statement on the floor by the Senator from Alaska 
about joint and several liability, and unlimited liability, which do 
not apply in this case. Joint and several liability means that any 
individual who is liable jointly and severally could be liable for 
whatever Lloyd's might be involved in. But I think there is agreement 
that in this case Judge Breyer's liability is not joint and several, 
but it is pegged at one five-thousandths of what losses this particular 
investment might incur.
  What are the facts? As best we know them in the estimates that have 
been given by authorities who presented the evidence to the Judiciary 
Committee, in the worst case scenario Judge Breyer's exposure is 
$187,000. The underwriter projects the losses for his share at 
substantially less than that, at $50,000. He has personal loss 
insurance of $188,000. He has already paid the $37,000 deductible, and 
insurance will cover the next $225,000 in losses, and Judge Breyer has 
retained earnings of $220,000 held by Lloyd's.
  Now, beyond that, as the Senator from Indiana himself has noted, the 
assets of Judge Breyer and his wife are very, very substantial, as 
Senator Lugar articulated, in the $6 million to $8 million category.
  It is important to know that Judge Breyer's wife's assets could not 
be reached. He could retain both his home and his pension fund, and his 
future earnings would be beyond reach.
  So even projecting the very, very speculative considerations here, 
there is an outward limit realistically as to what Judge Breyer would 
have to pay, and it is far, far less than his assets. And he does have 
insurance to cover those losses.
  You can always say that the insurance company which is covering his 
losses might be insolvent, but that raises another level of 
speculation. And the question is whether it is reasonable to deny Judge 
Breyer confirmation by the U.S. Senate based on this one factor alone.
  The Senator from Indiana has spoken at some length about the issue of 
conflict of interest, and that was a subject which the committee 
inquired into in some detail. The provisions of the relevant statute as 
to conflict of interest I submit clearly have not been violated, and 
that is the opinion given by the legal scholars who made an evaluation 
on the issue of ethics and on the evaluation of the statute.
  But rather than rely on the experts, I think the Senate Judiciary 
Committee and the individual Senators have an independent duty to take 
a hard look at the law and evaluation as to what the facts are. The 
relevant provision of section 455 of title 28 of the United States 
Code, the recusal statute, makes it a conflict if there is any interest 
that could be substantially affected by the outcome of the proceedings.
  I questioned Judge Breyer on decisions handed down by the First 
Circuit which could affect Superfund liability, where even though 
Lloyd's was not an insurer in that particular case, the case might 
establish a principle which could have an effect on Lloyd's liability 
in some other case.
  I think that that is always a risk which is involved when a judge 
sits on a case, even though none of his investments may be a direct 
party, that the ruling could affect some other potential party that he 
might not even know about. And as I said at the hearing, I believe that 
there ought to be further legislative consideration as to whether the 
standards of section 455 are adequate, whether it is necessary to have 
a broader exclusion so that judges or other Federal officials would not 
make such investments.
  But I think on the face of this statute, which is defined as any 
other interest that could be substantially affected by the outcome of 
the proceeding, that in the cases on which Judge Breyer sat there is 
reasonable certainty that this section was not violated, not only by 
the terms of the experts who testified and submitted letters, but by an 
examination of the cases on which Judge Breyer sat.
  When the Senator from Indiana refers to his own personal experience 
when he was sworn in as mayor of Indianapolis in 1967 and decided not 
to have any stocks on the New York Stock Exchange, not even General 
Motors, I think that is a judgment that an individual may choose to 
make.
  From my own perspective, the forms are so complicated that they are 
not worth the time and effort. But I think it would be an undue 
restriction to say that someone who had an investment in General Motors 
ought to be compelled to give that up if he is to be a Federal judge, 
or if he is to be a U.S. Senator. And I state that I do not have an 
investment in General Motors or any similar company or in any company 
except an investment which was made in a small retirement fund that I 
had from my former law firm.
  It is not easy to encourage people to come into public life with all 
of the problems which are attendant to being in public life. The 
microscopes are very high powered, and I think it is fair that they 
ought to be for a nominee to the Supreme Court of the United States. 
But to say that there cannot even be an investment in something like 
General Motors, while it might be the personal preference of the 
Senator from Indiana, my own view at this moment is that that goes too 
far.
  But I do believe, by way of brief repetition, that the 
disqualification provisions of the statute ought to be reexamined, that 
we ought to take a look to see if there is some remote benefit to stock 
interest that a judge may have even though that interest is not 
represented by any specific party in the litigation.
  The totality of the issue on Lloyd's of London, Mr. President, I 
think boils down to at least my conclusion that when Judge Breyer made 
his investment, based on the 300-year history of the case, it was 
understandable that he would think it was a conservative investment, as 
he testified, and that he did try to extricate himself in the mid-
1980's, to leave the investment, and that he cannot be held accountable 
for the additional liability which may be imposed or was imposed by the 
Congress in 1986, long after he made the investment.
  If you take a look at the hard facts of the case, there is a very, 
very remote possibility that his liability would exceed his insurance, 
and that his overall assets will not be jeopardized even under the 
worst-case scenario, as outlined by the Senator from Indiana, and that 
there are assets which are beyond the reach of the Lloyd's of London 
liability if in fact the sky were to fall in.

  The totality of Judge Breyer's record, Mr. President, I think has to 
be evaluated in deciding whether we choose to confirm Judge Breyer. My 
conclusion is that he ought to be confirmed. I say that based upon his 
capability and his record and the way he responded to questions at the 
Judiciary Committee hearing.
  We have had a practice in the past several years that nominees have 
answered only as many questions as they have to. We saw a situation 
with Justice Scalia where he would not even say that the bedrock case 
of Marbury versus Madison was beyond reconsideration by the Court. That 
is the case which gave the Supreme Court the authority to be the final 
arbiter of the Constitution.
  When Justice Scalia appeared before the Judiciary Committee, his 
confirmation was virtually assured because of the facts of that 
particular year. We had just gone through a very tough confirmation 
hearing with Chief Justice Rehnquist and it was prudent for Justice 
Scalia not to respond to much, and he responded to virtually nothing.
  We had Judge--later Justice--Souter come before the committee. He 
responded to very few questions. I asked him a question about whether 
the Korean situation was a war, and he said he did not know. He 
declined to answer. That, I think, is an important question.
  When Judge Breyer was asked the question, he responded in a direct 
way that the Korean incident was a war. Why is that important? Because 
the Supreme Court may be in a position of being the final arbiter on 
conflicts between the Congress and our sole and exclusive authority to 
declare, and the President's powers as Commander in Chief.
  This floor, which is empty at the moment, has been filled in recent 
days on very lively debate about whether we ought to invade Haiti. 
There is a sense-of-the-Senate resolution that the President ought not 
to invade Haiti. I and others have said that if the President wants to 
retain that option, he ought to come to the Congress and ask for it; 
that his powers as Commander in Chief are really for an emergency 
situation only; and that if he wants authority, it ought to be the 
Congress which grants that authority, just as the Congress passed a 
resolution authorizing the use of force in Kuwait.
  So on a question which really has very, very serious ramifications, 
Judge Breyer was forthcoming.
  When it came to the issue of the death penalty, which is a subject of 
really great concern--some 37 States in the United States have the 
death penalty--there are many who believe, myself included, that the 
death penalty is a very valuable weapon in the arsenal against criminal 
violators. And I have concluded that based on the experience that I had 
as district attorney of Philadelphia for some 8 years.
  When we asked Justice Ginsburg whether she had any conscientious 
scruples against the death penalty, in a context where her confirmation 
was virtually assured, so many Senators having spoken in advance, she 
in fact said it was none of the Senate's business and she would apply 
the law. But then we see later opinions coming out where the impact of 
the death penalty is cut back. So I think that is a fair question to 
ask.
  And Judge Breyer was forthcoming on that issue.
  We asked him questions on the critical matter of the separation of 
church and state. He said that he agreed with Jefferson's statement 
that there is a wall of separation between church and state. That is a 
matter of tremendous importance, as is the free exercise clause, in 
light of the case of Smith versus Oregon, where the Supreme Court of 
the United States did not impose the highest standard of strict 
scrutiny on the free exercise of Congress, and Congress had to 
legislate on the subject. There are some today who say that the 
constitutional doctrine of separation of church and state is a lie of 
the left; that there is no such doctrine.
  So it is very important in evaluating the qualifications of a nominee 
and the reliance on precedents to have that kind of a question 
answered. And Judge Breyer was forthcoming on that question and many, 
many others, without reviewing the full transcript.
  I had expressed some concerns or some reservations about the 
nomination process generally. It seems to me that the Supreme Court 
would be better served if there were members of the Court who had a 
broader background; if someone like Bruce Babbitt, who has experience 
as a Cabinet officer, a Governor, and a Presidential nominee, who was 
considered for the Court, would be nominated, or some Members of the 
Senate had been considered for that position; that there is a certain 
uniformity in the Court today, with eight of the nine Supreme Court 
Justices having come from other appellate courts, seven of them from 
Federal courts of appeals, and one from a State court of appeals. And 
Judge Breyer is right in that line. So some greater diversity would be 
useful. But that is certainly not a disqualifier.
  So that on the totality of the record, it is my view that Judge 
Breyer is qualified for confirmation.
  He came through the Judiciary Committee with a unanimous 18-to-0 
vote. Everybody on the Judiciary Committee felt that he was qualified.
  The issue of Lloyd's of London was a subject of very substantial 
inquiry by the Judiciary Committee. When the Senator from Indiana 
speaks on a subject, I--and I think uniformly in this Chamber, we--
listen to what he has to say very, very carefully.
  But on the issue of prudence and whether Judge Breyer is sufficiently 
prudent to be a Supreme Court Justice, I am confident that the fair way 
to evaluate the Lloyd's of London's investment is on one state of the 
record, combined with the balance of his record, which is outstanding. 
And even on the Lloyd's issue, there was substantial reason for him to 
believe at the time he made the investment, as he testified, that it 
was a conservative investment and his liability was limited.
  With respect to the future issue of conflict of interest, the number 
of cases which reach the Supreme Court which might even remotely or 
speculatively involve that issue, I think, would be very, very minimal.
  Judge Breyer has outlined a protocol, if confirmed--and I think he 
will be confirmed--which he will leave with the clerk's office so that 
he can recuse himself or disqualify himself if that should become 
necessary.
  On the issue as to whether this is going to wreck him financially, it 
is very, very, speculative that any losses would exceed what he is 
insured for. And if they would exceed what he is insured for, there are 
substantial assets that he has to cover them, and substantial assets 
beyond which would not be subject to reach for the Lloyd's of London 
liability, at the very worst.
  So on this state of the record, I intend to vote for Judge Breyer for 
his confirmation, and I urge my colleagues to do the same.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. CRAIG addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I rise this afternoon to express my intent 
to vote for the confirmation of Judge Stephen Breyer to the U.S. 
Supreme Court.
  My decision on a Supreme Court nominee's fitness is based on my 
evaluation of three criteria--character, competence, and philosophy--by 
which I mean the nominee's judicial philosophy, when I speak of 
philosophy, Mr. President; in other words, how the nominee views the 
duty of the Court and the scope of the authority.
  It is my strong belief the judiciary should hold to its original 
purpose, neither to rubberstamp legislative decisions, nor to be 
overreaching to act as substitute legislators.
  Judge Breyer satisfies my criteria and I think satisfies the concerns 
of a majority of the Senators. However, I do have some concerns that I 
want to express about issues that arose during the confirmation 
hearings.
  I think it is important they be on the record, for I hope it is 
important that the judge, when he is confirmed, will take note of some 
of these concerns.
  My concerns relate to private property rights.
  One article about the confirmation hearings reported that Judge 
Breyer said Government clearly can impose some legitimate regulations 
without compensation, while other rules could go too far. He said there 
are no fixed legal rules on where to draw the line. ``You always come 
back to a kind of human judgment--what is too far,'' he said.
   The report goes on to say that Judge Breyer stated property rights 
cannot be elevated to the same plane as fundamental liberties, such as 
free speech.
  This is a judge who talked about respecting the precedent of the Roe 
versus Wade decision on abortion.
   I certainly hope he is equally respectful of the Supreme Court's 
private property rights case, including the recent Dolan versus Tigard 
decision.
  Chief Justice Rehnquist wrote:

       We see no reason why the Takings Clause of the Fifth 
     Amendment, as much a part of the Bill of Rights as the First 
     Amendment or the Fourth Amendment, should be relegated to the 
     status of a poor relation in these comparable circumstances.

  In other words, Judge Rehnquist was saying that certainly takings of 
private property in this instance are every bit as important, while 
Judge Breyer says they may not be. I hope he would come to believe in 
the Dolan versus Tigard decision.
  The war to reclaim private property rights in America is not just 
being fought in the Supreme Court. For the people of my State of Idaho 
and other parts of the American West, this is literally a matter of 
life and death--whether their traditional livelihoods will be destroyed 
by the stroke of a regulator's pen.
  I am not saying we should give less weight to the fundamental 
liberties of free speech and the like. Just give equal, fair 
consideration to all rights preserved under the Bill of Rights, as our 
Founders obviously intended them. To attempt to downgrade the taking 
clause of the fifth amendment is to ignore history. If any of the 
rights guaranteed in the Bill of Rights were less important, they would 
not have been enumerated as they were.
  There is one other point I would like to raise about the confirmation 
hearings. We have tremendous problems in the West with arbitrary, 
painful regulatory decisions of a number of agencies. The Bruneau Hot 
Springs snail and the northern spotted owl, as it related to the 
Endangered Species Act, are creating tremendous problems in the West. I 
do not believe any Member of the U.S. Senate voting for the Endangered 
Species Act ever believed that these kinds of things would occur. But 
the law is now being used, and these are very real problems that have 
resulted. Even Interior Secretary Bruce Babbitt has admitted there are 
problems associated with the bureaucracy. He announced administrative 
changes in June that he hoped would make the endangered species 
listing, for example, less arbitrary.
  I applaud Judge Breyer's interest in cost/benefit analysis in 
regulatory decisions. However he takes his point too far. One article 
summarized a proposal from Judge Breyer's book on regulations as 
follows:

       He proposes creating an elite corps of regulators to assess 
     risk and apportion resources accordingly.

   I do not think we need an elite corps. We need fewer and more clear 
laws. That becomes part of the judge's responsibility in delineating 
that. We do not need the kind of arbitrary decisionmaking that has been 
allowed.
  I think, though, the quote from his book clearly reflects a complete 
lack of understanding for the way regulations affect the real people in 
the real world. We do not need regulators drawn into a tighter circle, 
given more authority and power. Certainly the citizens of Idaho would 
say just the reverse.
  Frankly, we need what even Bruce Babbitt says he is pursuing: Better 
oversight by regulators and by the Congress; more input from States and 
local authorities and private property owners. You know, this is a 
Government of the people and by the people, and not of regulators and 
by regulators. I am afraid maybe Judge Breyer might need to learn a few 
lessons in that area--if he continues in his service on the Court--to 
be more evenhanded.
  My point is the rights guaranteed in our Constitution are the only 
protection we have against bureaucrats overstepping their authority. 
We, the Senate, stand in between by making good law. But when it goes 
beyond that, we do need courts with a clear vision of what the intent 
of the Constitution is, and I hope the judge would come down in that 
way. Unless jurists in the high court, like Judge Breyer, are 
consistent in recognizing private property equally with other rights in 
the Bill of Rights, none of our constituents can be assured any of 
their rights will be adequately protected.
  So I hope in the judge's confirmation and his service on the Court he 
will take in a much more serious vein, private property rights as an 
extension of human rights, the right of the citizens as spoken to so 
clearly in our Constitution. But with that admonishment and that 
concern, I do believe the judge meets my three criteria of character, 
competence, and philosophy as it relates to the Court. And for those 
reasons I will vote for his confirmation.
  Mr. President, I suggest the absence of a quorum and ask that the 
time be evenly divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I rise to join others to speak in support 
of the nomination of Judge Stephen G. Breyer to be an Associate Justice 
of the Supreme Court of the United States.
  The Senate's advise-and-consent responsibility for Presidential 
nominees to the judicial branch, most particularly to the Supreme 
Court, is one of the most important responsibilities given to this body 
by the U.S. Constitution. I, like others, take this responsibility very 
seriously.
  This constitutional responsibility as applied to the judicial branch, 
I believe, is unique. It is distinguished from our responsibility with 
nominees for Cabinet posts, senior military, or ambassadorial posts.
  Judicial nominees are in a separate category because they form the 
third branch of our Government, a branch created by joint effort 
between the executive branch, the President nominating the members of 
the judiciary, and the legislative branch, namely, the Senate 
exercising constitutional authority under the advise-and-consent 
clause.
  Mr. President, I have followed the proceedings of Judge Breyer's 
nomination and confirmation hearings very carefully. I also reviewed 
the briefing material available to Senators on Judge Breyer's personal 
background and his extensive legal career. Using this information, I 
made an analysis of the various calls and letters and other 
communications directed to me by my constituents from Virginia. I also 
reviewed, given the nature of the calls, the testimony of Mr. Michael 
Farris, a Virginian and the president and founder of Home School Legal 
Defense Association, who spoke in opposition to this nominee.
  This area of home schooling and religious schools was of particular 
concern to a great many of my constituents as manifested by the 
testimony of Mr. Farris. These constituents asked me to determine: 
``What are Judge Breyer's views on home schooling and private religious 
schools?''
  Constituents specifically referred to Judge Breyer's opinion in the 
case of New Life Baptist Church Academy versus The Town of East 
Longmeadow in the Federal Circuit Court of the First Circuit in 1989.
  Given the seriousness of these questions, I proceeded as follows:
  First, I studied the opinion just enumerated in the Longmeadow case. 
The next step was to prepare for the Judiciary Committee, during that 
committee's review of Judge Breyer, a series of questions.
  At the hearing, the nominee, on my behalf, was asked--that is July 
21, 1994--to give the committee his views on home schooling and private 
religious schools and his interpretation of how the Constitution 
protects these schools, most specifically under the First Amendment.
  With his response in the official record, I then scheduled a meeting 
with Judge Breyer in my office to further inform myself about the 
nominee, his overall qualifications and, specifically, to discuss the 
issues of concern raised by Virginia constituents. I asked Judge Breyer 
to expand on the questions relating to home schooling and religious 
schools and to put them in a letter, which he most respectfully 
forwarded promptly.
  Mr. President, I ask unanimous consent that a letter addressed to me 
by Judge Breyer on the subject of the Longmeadow case be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                    July 22, 1994.
     Hon. John W. Warner,
     Senate Russell Office Building, Washington, DC.
       Dear Senator Warner: Thank you for your questions about the 
     rights of parents to determine how to educate their children, 
     and in particular about the opinion in New Life Baptist 
     Church Academy v. Town of East Longmeadow, 885 F.2d 940 (1st 
     Cir. 1989).
       I did listen carefully to the criticisms of the New Life 
     Baptist Church Academy opinion, and I recognize that they 
     have been made in good faith. As I understand them, the 
     criticisms are that the opinion endorses government 
     prohibitions of home schooling, and gives government too much 
     leeway to regulate religious education. In my judgment, these 
     criticisms misstate the meaning and effect of the New Life 
     Baptist Church Academy case.
       The opinion does not endorse the view that government may 
     prohibit home schooling. It is well established that the 
     ``liberty'' guarantee of the Fourteenth Amendment ensures 
     parents' right to ``direct the upbringing and education of 
     children under their control.'' Pierce v. Society of Sisters, 
     268 U.S. 510, 534-35 (1925). As I stated during the Judiciary 
     Committee hearings, I regard this principle as settled and I 
     have no bias whatsoever against home schooling. The opinion 
     in New Life Baptist Church Academy expresses no disagreement 
     with this principle. The case did not involve home schooling 
     at all; it involved the accreditation of a private religious 
     school.
       The case did raise a difficult issue of balancing a 
     religious organization's freedom under the Free Exercise 
     Clause of the First Amendment to educate their children 
     according to their beliefs and the government's need to 
     ensure that all students receive a basic education in 
     subjects such as reading and math. In deciding the issue, the 
     court applied a test substantially more protective of 
     religious liberty than the current Supreme Court test 
     established in Employment Division v. Smith, 494 U.S. 872 
     (1990). Recognizing the Academy's ``sincere, relevant 
     religious belief,'' our court in New Life Baptist Church 
     Academy required the state to show that its interest in 
     regulation was ``compelling'' and that there was no practical 
     ``less restrictive'' way of achieving the state's objectives.
       The particular question was whether the state could 
     evaluate the secular education provided through occasional 
     classroom visits or, instead, was required to evaluate the 
     secular education through a system of voluntary testing of 
     each child. Our court held that the latter system (a system 
     that, in the court's view, no state had previously used) was 
     not practical, threatened to entangle the court in religious 
     matters, and offered only comparatively minor benefits to 
     religious schools generally. Consequently, the court held 
     that the Constitution permitted the school board's ``school 
     visit'' evaluation system. While people of good faith can 
     disagree about the merits of the case's outcome, I should 
     hope that most would see it as a close and difficult case, 
     which might have come out either way. I should also hope that 
     the case would be evaluated in the context of my overall 
     record, which is quite protective of religious liberty.
       I hope that this has been helpful. My best wishes.
           Sincerely,
                                                 Stephen G. Breyer

  Mr. WARNER. Mr. President, a review of this letter with constituents 
who continue to call seems to meet most of their major concerns.
  Accordingly, Mr. President, I find Judge Breyer a highly qualified 
professional to become a member of the U.S. Supreme Court. His 
financial problem raised today by one of our most distinguished 
colleagues, is a problem, indeed. But in my judgment, it is an 
investment, perhaps unwisely made in hindsight, but that is separable 
and a single issue from his overall, very extensive and commendable 
accomplishments throughout his professional career as a lawyer.
  Accordingly, I will vote in favor of Judge Breyer when this body 
turns to the vote later today.
  Mr. President, I would like, at this point, to read into the Record 
briefly from the letter sent to me by Judge Breyer on July 22:

       Dear Senator Warner: Thank you for your questions about the 
     rights of parents to determine how to educate their children, 
     and in particular about the opinion in New Life Baptist 
     Church Academy v. The Town of Longmeadow.
       I did listen carefully to the criticisms of the New Life 
     Baptist Church Academy opinion, and I recognize that they 
     have been made in good faith. As I understand them, the 
     criticisms are that the opinion endorses Government 
     prohibitions of home schooling, and gives Government too much 
     leeway to regulate religious education. In my judgment, these 
     criticisms misstate the meaning and effect of the New Life 
     Baptist Church Academy case.
       The opinion does not endorse the view that Government may 
     prohibit home schooling. It is well established that 
     ``liberty'' guarantee of the fourteenth amendment ensures 
     parents' right to ``direct the upbringing and education of 
     children under their control.''

  He cites the Pierce case of the Supreme Court in 1925.

       As I stated during the Judiciary Committee hearings, I 
     regard this principle as settled and I have no bias 
     whatsoever against home schooling.

  Mr. President, I would like to repeat that:

       I regard this principle as settled and I have no bias 
     whatsoever against home schooling.

  I read into this letter the word ``settled,'' that is settled by 
judicial opinion.

       The opinion in New Life Baptist Church Academy expresses no 
     disagreement with this principle. The case did not involve 
     home schooling at all; it involved the accreditation of a 
     private religious school.
       The case did raise a difficult issue of balancing a 
     religious organization's freedom under the free exercise 
     clause of the first amendment to educate their children 
     according to the beliefs and the Government's need to ensure 
     that all students receive a basic education in subjects such 
     as reading and math. In deciding the issue, the court applied 
     a test substantially more protective of religious liberty 
     than the current Supreme Court test established in Employment 
     Division v. Smith.

  A Supreme Court case of 1990.

       Recognizing the academy's ``sincere, relevant religious 
     belief,'' our court in New Life Baptist Church Academy case 
     required the State to show that its interest in regulation 
     was ``compelling'' and that there was no practical ``less 
     restrictive'' way of achieving the State's objectives.
       The particular question was whether the State could 
     evaluate the secular education provided through occasional 
     classroom visits or, instead, was required to evaluate the 
     secular education through a system of voluntary testing of 
     each child. Our court held from the latter system (a system 
     that, in the court's view, no State had previously used) was 
     not practical, threatened to entangle the court in religious 
     matters, and offered only comparatively minor benefits to 
     religious schools generally. Consequently, the court held 
     that the Constitution permitted the school board's ``school 
     visit'' evaluation system. While people of good faith can 
     disagree about the merits of the case's outcome, I should 
     hope that most would see it as a close and difficult case, 
     which might have come out either way. I should also hope that 
     the case would be evaluated in the context of my overall 
     record, which is quite protective of religious liberty.
       I hope this has been helpful. My best wishes. Sincerely, 
     Stephen G. Breyer.

  Mr. President, when I reviewed that letter, together with a number of 
facts from other persons who continue to call, the letter, in my 
judgment, relieves the concern that they had. I thank them for calling 
me.
  I yield the floor.
  Mr. GRAMM addressed the Chair.
  The PRESIDING OFFICER (Mr. Wellstone). The Senator from Texas is 
recognized.
  Mr. GRAMM. Mr. President, I want to speak a moment on the Breyer 
nomination. For 12 years, I stood on the floor and listened to debate 
as many of my colleagues on the left sought to win in the Senate what 
they could not win at the ballot box by opposing nominees by President 
Reagan and President Bush with whom they disagreed philosophically. I 
want to make it very clear to my colleagues, and obviously to the folks 
back home in Texas, why I am going to vote for Judge Breyer and why I 
think it is the only proper vote.
  Elections have consequences. When people in America voted for Bill 
Clinton they knew, or they should have known, that when it came time 
for him to nominate a justice for the Supreme Court of the United 
States and for lower courts and for other positions of authority, that 
he was going to nominate liberals; that he was going to nominate people 
who reflected his views and the views of the Democratic Party.
  I have voted against Presidential nominees during the Clinton 
administration but only under very limited circumstances. I voted 
against those that I believed were not qualified and those that I 
thought were not credible. I have also voted against those who hold 
views that are outside the mainstream of liberal Democratic thinking. I 
have opposed those nominees who hold views that Americans who voted for 
Bill Clinton could have never conceived that by voting for him, they 
were setting the foundation for the nomination of people who held views 
that were contrary to the Constitution or contrary to the basic 
American principle of the rule of law in private property.
  I would never have nominated Judge Breyer had I been President. No 
Republican would have nominated Judge Breyer because his views are 
fundamentally different than ours. Judge Breyer came very close to at 
least hinting that he viewed the protections of property in the fifth 
amendment as not being as strong or as clearly defined as the 
protection of speech. I do not agree with that. If we are not secure in 
our right to property, then we are not secure in our right to free 
speech.
  Certainly in terms of an expansive definition of the Constitution, I 
have no doubt that Judge Breyer is going to make rulings that represent 
a different interpretation of the great document that I have and that 
people who share my values have.
  But I also believe that Judge Breyer's views are mainstream liberal 
views. I believe that anyone who voted for Bill Clinton knew or should 
have known that the chances that anyone more conservative than Judge 
Breyer being nominated by Bill Clinton were almost zero.
  So my view is, Mr. President, that elections have consequences. Those 
who are unhappy with this nomination will have an opportunity to say 
something about it this November, and they will have a bigger 
opportunity to say something about it 2 years from now. But when we 
held the election for President, the American people spoke, and Bill 
Clinton was elected. I am not going to try to win, on the basis of 
philosophy, victories in the Senate that my party could not win at the 
ballot box. Elections have consequences. The election that we held in 
1992 had consequences, and one of those consequences is Judge Breyer. 
Within the constraints that Bill Clinton was going to nominate a 
liberal to the Court, the person he has chosen is as good as any of us 
had any right to expect him to be. The President came down to a 
decision between a politician and a jurist. He chose a jurist. I cannot 
very well lament that this is not someone that I would have chosen.
  So I am going to vote for this nominee, not because I agree with him 
philosophically but because I believe he is qualified. I believe he is 
credible. I believe his views, though they are different from mine, are 
within the mainstream of the thinking of his political party. And 
whether I like it or I do not--and I do not--the American people put 
Bill Clinton into the White House. This nomination is a result of that, 
and I am not going to stand in the way of it because I differ 
philosophically with this nominee.
  I yield the floor.
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, as we all know, we will soon vote on the 
nomination of Judge Stephen Breyer. I think we all also are aware that 
Judge Breyer will be confirmed by the Senate by an overwhelming vote.
  I believe he has received a fair hearing from both sides, and, 
clearly, as my friend from Texas just stated, he would not have been 
the choice if there had been a different result of the 1992 election. 
The fact is that the results of the election indicate that the 
President of the United States not only has the right to select, in his 
view, the best qualified members of the Supreme Court but also many 
other positions in Government. And with rare exceptions, I have tried 
to give the President of the United States the benefit of the doubt.
  I have had serious concerns about Judge Breyer's role in the $500 
million Boston Courthouse project, a project that I still believe is an 
exercise in extravagance, arrogance and a callous disregard for the 
taxpayer. As we all know, Mr. President, being a Justice of the Supreme 
Court is all about good judgment and discretion, qualities that have 
been sorely lacking in the development of the Boston Courthouse. 
Allegations about the extent of Judge Breyer's involvement in this 
matter have been quite troubling to me.
  Mr. President, when Judge Breyer was asked at the hearings by one of 
the members of the Judiciary Committee, Judge Breyer rolled his eyes, 
acted as if it was somewhat of a tiresome issue, and then proceeded to 
basically blame the General Services Administration for any problems 
that might have arisen concerning the Boston Courthouse. That, frankly, 
Mr. President, does not really coincide with Judge Breyer's comments 
that he made to the Washington Post, and I quote from the article that 
was on the front page of the Washington Post that said:

       The courthouse that Stephen G. Breyer built will stand on a 
     spectacular stretch of Boston Harbor, a 10-story, $200 
     million block room of courtrooms and offices turned into 
     something more by a vast public atrium. On the outside, there 
     will be parks and a boating dock; on the inside a day-care 
     center, a theater, a community meeting hall, a restaurant and 
     an art gallery.
       This, Boston's new Federal courthouse, has been Breyer's 
     responsibility as chief judge of the First U.S. Circuit Court 
     of Appeals, and the unusual shape it will take says much 
     about the philosophy and temperament of the man who may 
     become the next Supreme Court Justice.

  I continue the quote from the Washington Post article, Mr. President:

       Breyer personally interviewed the architects applying for 
     the project. He consulted with community and environmental 
     groups. While cycling through the countryside of France three 
     years ago, Breyer stopped, gazing at the buildings he 
     encountered, talking animatedly with the locals about their 
     design. He called his aunt in San Francisco about how to make 
     the building more accessible to children. He visited 
     courthouses around the country, mining for ideas, and pored 
     over the original plans for the Supreme Court in Washington, 
     all the while insisting on a Boston complex that would expand 
     the definition of courthouse from legal to civic, a place 
     open in the evenings and weekends, a place inviting to the 
     community.
       ``This most beautiful site in Boston,'' he said at the time 
     the project was unveiled, ``does not belong to the lawyers. 
     It does not belong to the Federal Government. It does not 
     belong to the litigants. It belongs to the people.''

  Mr. President, that really does not coincide with Judge Breyer's 
comments in response to questions before the Judiciary Committee. And 
there is something interesting about this also; in Judge Breyer's 
commitment to beauty and all of the things, ``the most beautiful site 
in Boston,'' never once did Judge Breyer mention any concern about the 
cost, which is now around $500 million for a courthouse, to the point 
where, Mr. President, the courthouse now has to have a $270 million 
subway built to reach it so it will be accessible to the people.
  It has a 6-story atrium, 63 private bathrooms, 37 law libraries, 33 
private kitchens, custom-designed private staircases, a half-million 
dollar boat dock, nearly $800,000 for original artwork, and $1.5 
million for a floating marina. All of this and more to be built on the 
most expensive and least functional site that was considered.
  The pricetag to the taxpayers, as I mentioned, is $500 million, $300 
million for the courthouse and $200 million to extend the Boston subway 
system to the new facility.
  I think it is well to note, too, Mr. President, that somehow State 
and local courthouses are not required to have this kind of ``belonging 
to the people at the most beautiful site in Boston.'' In fact, the cost 
of the Boston Federal Courthouse is three times the cost of building a 
new State courthouse that is in the same area. Private bathrooms, 
libraries, and kitchens are certainly nice perquisites, but State 
judges seem to be able to do without the expense of these items. Why is 
the Federal judiciary so needful and deserving of palatial 
accommodations? The answer is that they are not.
  I also noticed, Mr. President, that Judge Breyer is a man of some 
wealth. I did not see Judge Breyer in his desire to have everything for 
``the most beautiful site in Boston. It does not belong to the lawyers. 
It does not belong to the Federal Government,'' et cetera, willing to 
spend any of his substantial wealth in order to make this a beautiful 
project.
  As chief judge of the First Circuit Court of Appeals, Judge Breyer 
was the liaison on the Boston project between the judges and the 
General Services Administration.
  How can such a project possibly be justified at a time when we are 
asking every sector of our society to tighten the budgetary belt, to do 
more with less, and to help reign in our monstrous public debt? Not 
just certain Senators, but the public finds such extravagance at the 
expense of the taxpayer to be simply outrageous.
  I wish I could say that Boston was an exception, but such excesses 
have been uncovered in a number of projects, from New York to my own 
State of Arizona.
  The good news is that the sunlight of public scrutiny on this issue, 
and a more enlightened and responsible leadership at the General 
Services Administration, is improving the situation. The GSA has 
implemented a program of time-out and review to reassess Federal 
building projects, including courthouses, to better protect the 
taxpayer. But, we must continue to be vigilant.
  I am greatly disturbed that it took the weight of congressional 
inquiries and the force of public outrage to wake up the judiciary and 
the administration to the abuses involved with the courthouse 
construction program. I'm even more troubled that judges upon whom we 
depend for their good judgment and unswerving advocacy for the public 
interest have been party to this pattern of excess and abuse at Boston 
and elsewhere.
  For the record, not all judges have allowed that to happen, such as 
the Federal judges in Louisiana who sought to cut the costs of their 
facility. Regrettably such vision and accountability was not the case 
in Boston. Again, that is why I have been so concerned about Judge 
Breyer's role, and the reason I submitted a series of questions to the 
judge to determine the precise level of his involvement.
  I want to thank the judge for his cooperation in responding to my 
questions. I would be less than candid if I did not acknowledge that I 
still have some lingering concerns. However, Judge Breyer has assured 
me that all appropriate procedures and ethical standards were observed 
in the site selection, scoping and development of the project, and that 
as chief judge of the circuit he acted properly. Despite my nagging 
concern, I will accept his word.
  I might add that the inquiry into the Judge's role at the Boston 
Courthouse has been extremely helpful in the effort to curb future 
abuses by highlighting a serious problem regarding the responsibilities 
of the Judiciary and the executive branch for the development of 
courthouse projects.
  Judicial officials claim that their role is merely advisory and that 
the General Services Administration is the absolute authority on the 
site selection, scope, and design of building projects. General 
Services Administration officials claim that due to the separation of 
powers they defer significantly to the wishes of the judiciary. Ill-
defined and misunderstood division of responsibilities, and the lack of 
clear accountability is a recipe for waste and inefficiency. The 
Administrator of the GSA has made significant progress in addressing 
this situation, and we must continue efforts to define clearly the 
responsibilities of the two branches, and ensure that there is 
accountability to Congress and, most importantly, to the taxpayer.
  Again, I thank Judge Breyer for his cooperation. I wish him success, 
and I hope that good judgment and discretion will mark his tenure on 
the Supreme Court.
  I do not believe that he was candid and forthcoming in his answers 
concerning the courthouse, particularly in light of the comments that 
he made to the Washington Post. I do not believe that is sufficient 
reason for me to oppose his nomination. But I think that there will be 
questions that are going to be asked about this project in the future 
as the costs continue to escalate, and the expense to the taxpayer 
remains unjustified.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. METZENBAUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bradley). Without objection, it is so 
ordered.
  Mr. METZENBAUM. Mr. President, I yield myself such time from Senator 
Biden's time as I may need.
  As I have stated throughout the nomination process, Judge Breyer is 
clearly a man of exceptional legal skill and high intellectual ability. 
However, I am disturbed about this nomination for a number of reasons.
  I am concerned and bothered that Judge Breyer was not sensitive about 
his holdings in Lloyd's. He did not realize that his holdings could 
subconsciously affect his thinking when he decided cases dealing with 
environmental law.
  I believe that Judge Breyer has the potential to become a good 
Justice.
  Will he become a good Justice? I am not sure.
  However, to do so he will have to develop a big heart and become more 
sensitive to the economic concerns of ordinary people, small 
businessowners and the little guy. He will also have to display better 
judgment about when to recuse himself from cases in which there could 
be a conflict with his personal investments, or even the appearance of 
a conflict.
  I have made no secret of the fact that I am extremely disappointed 
that Judge Breyer failed to recuse himself from the Ottati case. At the 
time he was sitting in judgment on the EPA's superfund clean up 
policies, Judge Breyer had a large investment in environmental 
liability insurance through a Lloyd's of London syndicate.
  Most of us Americans have very little knowledge about Lloyd's. I must 
confess that I learned more about Lloyd's during the Judge Breyer 
confirmation process than I had learned in my entire lifetime. But 
Judge Breyer knew what Lloyd's was about.
  It should have been clear to Judge Breyer that his decision to make 
it more difficult for EPA to force polluters to clean up hazardous 
waste sites would be criticized. Because of his Lloyd's investments, 
Judge Breyer could have spared himself, and the rest of us, a great 
deal of soul searching and debate if he had used better judgment.
  He saw fit to recuse himself from all cases having to do with 
asbestos because somehow the Lloyd's investment of his might be 
involved. But he did not see fit to recuse himself from the 
environmental cases.
  There is no doubt in my mind that Judge Breyer's Ottati decision 
favors polluters over the EPA. It reduces the EPA's ability to move in 
quickly and force polluters to clean up the Hazardous waste sites they 
left behind. In my view, reducing EPA's ability to clean up Superfund 
sites threatens the health of every man, woman, and child who lives or 
works nearby.
  The sixth circuit was extremely critical of the way in which Judge 
Breyer substituted his own judgment for that of EPA officials. The 
court stated that it is ``not the job [of the reviewing court to] 
reformulate a scientific clean-up program developed over the course of 
months or years.''
  Frankly, I would have agreed with the sixth circuit's criticism of 
Judge Breyer under any circumstances. However, his Lloyd's investment 
makes the situation worse. The fact is that Judge Breyer's investment 
in Lloyd's of London's Merrett 418 syndicate includes extensive 
environmental pollution coverage that could have been affected by the 
Ottati Decision.
  As I have learned, Lloyd's insurance syndicates are not like 
conventional investments. To join a syndicate, investors must pledge 
their entire net worth to cover future losses. So, even though Judge 
Breyer has pledged to get out of Lloyd's as soon as possible, it may 
not be possible for him to do so. There is no way that he can step 
forward and sign a piece of paper or put up so much money and feel that 
under those circumstances he can get out of his Lloyd's obligation.
  Even Judge Breyer has said that his Lloyd's investments may have 
``captured'' him for life. Judge Breyer's prediction has been confirmed 
by a legal expert on American investors in Lloyd's. He wrote to me that 
``There is no way to get out of Merrett 418. One does not get out of 
Lloyd's by dying * * * bankruptcy would be the only sure way to get out 
of Lloyd's.''
  In other words, this albatross hanging over his head, this albatross 
of an investment, is going to be around Judge Breyer's neck for years 
and possibly for decades. He has suggested to us that he was buying a 
reinsurance policy to cover over his losses in Lloyd's, or that he 
could do so. But the fact is that if that new insurance policy goes 
belly up and does not have the money to meet its obligation, then the 
obligation falls back on everybody who was in the Merrett 418 
syndicate. According to this same Lloyd's expert, Merrett 418 is a 
``long-tail syndicate, which means that it may be many, many years 
before the true nature of the losses will be known.''
  Claims against Lloyd's Merrett 418 syndicate can expose Judge Breyer 
to costly liability claims from asbestos lawsuits and environmental 
pollution cases, including Superfund cleanup, for many years, and an 
indeterminate number of years into the future. Merrett 418 investors 
face claims and losses that are currently estimated at between $725 
million and $825 million, but the situation could get worse.
  The fact is that Judge Breyer should have recused himself from the 
Ottati case because of his investments in the Lloyd's of London 
insurance syndicate. It is not enough to say, well, he just did not 
think of it that way. It is not enough to say: Well, I got out of the 
asbestos cases, but I did not get out of the pollution cases. Even if 
it was not a violation of ethical standards, it was simply bad judgment 
for a man of Judge Breyer's intellect not to have done so. And it would 
be inexcusable if he did not recuse himself in the future.
  On that point of recusing himself in the future, Judge Breyer told 
the committee that he had some idea about posting at the Supreme Court, 
if he were confirmed, a list of what his holdings were, and that if any 
lawyer on either side felt he should recuse himself by reason of 
possible conflict of interest, he would do so. I thought that over for 
a number of days, and that is a totally unrealistic approach. It is 
totally unrealistic to expect some lawyer to go in and ask a Supreme 
Court Justice to recuse himself. The decision and the determination of 
whether he should recuse himself belongs in the heart and head of Judge 
Breyer, and I am not sure at this point that he will recuse himself. I 
am not sure that he does not think that, just as in the Ottati case, he 
could hear the case and still, in spite of his holdings in Lloyd's 
Merrett 418 syndicate, go ahead and adjudicate that case.
  I am also concerned about Judge Breyer's views on the fair 
competition laws which affect the day-to-day lives of all Americans. To 
date, his record has not been impressive for a judge who is supposed to 
have a big heart. He almost always votes against the very people the 
antitrust laws are supposed to protect. A 1991 study in the Fordham Law 
Review reported that in all 16 of his antitrust decisions, Judge Breyer 
voted against the alleged victim of antitrust abuse. At that time, 
Judge Breyer had the worst antitrust record of any Federal judge 
appointed by President Carter. It was even worse than most of the 
judges appointed by President Reagan--and that is going a long way.
  Let me give you an example. In a controversial decision, Judge Breyer 
overturned a $39 million verdict for the consumers of a small electric 
company. A jury had found that these consumers had been overcharged 
because of the anticompetitive tactics of an electric conglomerate that 
controlled the market. Instead of relying on the jury's judgment, based 
on 13 days of expert testimony, Judge Breyer made up his own graph and 
chart. It was a graph to explain why consumers should not get the $39 
million verdict.
  But Judge Breyer did not convince me or the consumers who lost the 
$39 million verdict that a hypothetical graph and chart did justice in 
this case. Frankly, I am not sure that legendary trustbuster, Teddy 
Roosevelt, or the father of our antitrust laws, Republican Senator John 
Sherman, would have approved of Judge Breyer's view of protecting 
consumers.
  I regret to say that Judge Breyer's antitrust record has not improved 
much since that decision. In response to my antitrust questions during 
the nomination hearing, Judge Breyer told me that he does not keep 
track of the number of times he rules in favor of the defendant. That 
may be so. But the facts speak for themselves. I am concerned that 
unless Judge Breyer stops seeing antitrust law in terms of abstract 
economic theories displayed in complicated charts and graphs about 
widgets, he will continue to favor big business over mom-and-pop 
operations and everyday consumers. Small businessmen and women and 
consumers want justice under the antitrust laws, not a graph on supply 
and demand theory.
  My goal during the committee hearings was to sensitize Judge Breyer 
to the law's impact on ordinary people. I hope I have been successful, 
because that is how history will measure whether he becomes the big-
hearted Supreme Court Justice that President Clinton believes he can 
be. Usually around here, I pretty much know which way to vote. I pretty 
much come down on one side or the other, and I say that is it, and I am 
not going to worry about what the consequences are. But in this 
instance, I have mixed feelings--not about the consequences, but about 
what is the right decision. I do not think this was a great appointment 
for our President. I think that Judge Breyer is far less of a jurist 
than we should accord a position on the Supreme Court.
  I want to say publicly that I take off my hat to Senator Lugar. He 
has made a strong case against confirming Judge Breyer. I am sorely 
tempted to vote with him. I am frank to say that even as I am speaking 
here, I am having concerns as to which is the right vote, despite the 
fact that I voted for Judge Breyer's confirmation in the Judiciary 
Committee. I have mixed feelings as to what is the right vote. One of 
the things that bothers me much is that I did vote in favor of 
confirming Justices Scalia, Kennedy, and O'Connor, and how do I 
reconcile that with a vote against Judge Breyer?
  It is with serious reservations and a heavy heart that I will vote to 
confirm him. But it is not a vote that will make me particularly proud. 
I hope that Judge Breyer, as he ascends to the Supreme Court, will 
become more of a jurist, more of a judge, more fair, more sensitive to 
the concerns of the little people that come before the Court, those who 
do not always have the high-powered lawyers, those who are not part of 
the corporate world.
  They come before him, and when they come before him, I hope that 
Judge Breyer will be far more sensitive than he has been in the past.
  Frankly, I think that is what this country expects of him. Whether or 
not he will reach that goal, whether or not he will be the jurist that 
some of us had hoped for the next Supreme Court jurist, only time will 
tell. But I will vote for him. It is not my proudest day.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. THURMOND. Mr. President, I rise in support of the nomination of 
Judge Stephen Breyer to serve as Associate Justice of the Supreme Court 
of the United States.
  The Senate Judiciary Committee recently held 4 days of hearings, 
including a closed session to comprehensively consider the 
qualifications of Judge Breyer to sit on the Supreme Court.
  It is unlikely that I would be in accord with President Clinton on 
every nominee that he puts forth to serve on the Federal bench. In 
fact, I recently opposed one nominee which he nominated to sit on the 
Eleventh Circuit Court of Appeals. However, I believe in granting the 
President some deference pursuant to his constitutional authority to 
fill Supreme Court vacancies.
  I had a favorable impression upon learning of Judge Breyer's 
nomination to the Supreme Court because I have known him for almost 20 
years. Judge Breyer came to my attention when he began work on the 
Senate Judiciary Committee, serving later in a most capable manner as 
chief counsel of the committee, and in 1980 he was nominated to serve 
on the U.S. Court of Appeals for the first Circuit. Judge Breyer has 
served with distinction on the first circuit and has been chief judge 
of that circuit since 1990. Additionally, Judge Breyer was nominated by 
President Reagan and served ably on the U.S. Sentencing Commission to 
address disparities in sentencing under Federal law.
  Mr. President, I was encouraged by a number of Judge Bryer's 
responses to questions during his confirmation hearing. Specifically, 
when questioning Judge Breyer on the death penalty, I pointed out that 
if confirmed, he would succeed Justice Blackmun who recently stated his 
belief that the death penalty is inherently flawed under the 
Constitution. I was pleased when Judge Breyer stated that he would take 
no such bias on capital punishment to the Supreme Court. Judge Breyer 
did not hesitate in his recognition that the death penalty is settled 
constitutional law.

  On another matter, questions were raised concerning Judge Breyer's 
ruling in the New Life Baptist Church case which dealt with religious 
schooling. During his hearing, Judge Breyer made it clear that he has 
no bias against home or religious schooling. He remarked:

       [t]here is nothing more important to a persons or to that 
     person's family than a religious principle, and there is 
     nothing more important to a family that has those principles 
     than to be able to pass those principles and beliefs on to 
     the next generation.

  Judge Breyer said that the religious freedom protection under the 
first amendment of the Constitution protected the right of parents to 
pass along their religion to their children free from State 
interference. It was his belief that anyone attempting to prevent home 
schooling would face ``very, very serious constitutional challenges.''
  Mr. President, it was encouraging to receive Judge Breyer's thoughts 
on judicial precedent, stare decisis, and judicial activism. Judge 
Breyer stated at the hearing: ``A judge should be dispassionate and try 
to remember that what he is trying to do is interpret the law that 
applies to everyone, not enunciate a subjective belief or preference.'' 
His comments on this matter reflect my own views on the separation of 
powers between the judicial and the legislative branches of government. 
At one point during my questioning of Judge Breyer, he stated 
succinctly and appropriately, ``a judge should not legislate from the 
bench.'' I was pleased to hear those remarks and it is a good 
indication that Judge Breyer will show appropriate deference to laws 
passed by the Congress.
  Mr. President, Judge Breyer does not appear to have an ideological 
bent to move the Supreme Court in one direction or the other. Judge 
Breyer expressed his desire to administer justice according to the law 
while being mindful that even archaic judicial decisions ultimately 
impact upon the lives of individuals.
  Based on my knowledge of Judge Breyer for almost 20 years, I am 
satisfied that he is a man of keen intellect, a capable jurist, and 
qualified to serve as an Associate Justice on the Supreme Court of the 
United States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. BROWN. Mr. President, I rise out of concern for Judge Breyer's 
nomination to be an Associate Justice of the Supreme Court. I have 
listened with interest as other Members have expressed opinions of the 
judge and his record, and I would like to share a few thoughts in this 
regard.
  First of all, Mr. President, let me say that I come to this debate 
with concerns about Judge Breyer in a couple of areas. He has indicated 
that he is comfortable with Supreme Court rulings which give second-
class protection to property rights. Judge Breyer has also indicated 
that he recognizes as settled law the restrictions that the Court has 
placed on religious expression. I strongly disagree with Judge Breyer 
on both of these issues. But I will end up voting for his confirmation, 
and I would like to explain the reasons why.
  As I listened to the judge articulate his judicial philosophy and his 
approach to issues, I found that he displayed a keen sense of 
objectivity and willingness to look at facts and make an honest 
inquiry.
  If there were one quality I would like our Supreme Court Justices to 
have, it is a willingness to listen to the facts and be objective and 
independent. I came away convinced that Judge Breyer has that quality--
he has a willingness to listen and an objectivity that we need so 
desperately in our judges. In addition, he has not only a very keen 
mind but a willingness to use it in scientific inquiry.
  Some Senators have come to the floor and expressed concern about the 
ideas expressed in his most recent book ``Breaking the Vicious Cycle.'' 
The book itself is a compilation of lectures that he has given. As I 
read that book, I found not an expression of political opinion, but an 
objective inquiry, using logic, facts and scientific evidence to 
examine the way government regulates. The book suggests that we can 
achieve a better fulfillment of our desires and a better use of our 
limited resources by looking at the facts and examining the best, most 
efficient way of allocating our resources.
  How some Members can find this a disqualification for service on the 
Supreme Court defies my imagination. We need a Justice who is willing 
to look at the facts, and who is willing to make a decision based on 
those facts.
  Any fair reading of the book ``Breaking the Vicious Cycle'' will 
reveal that he did not advocate a particular political philosophy and, 
more assuredly, that he did not advocate shortchanging environmental 
concerns. Instead, the book suggests that we ought to analyze 
everything and maximize the use of the resources that we have.
  I find that willingness to look at facts and that willingness to 
maximize our resources as laudable, and an excellent contribution for 
the Court, not a disqualifying factor.
  Last, Mr. President, let me comment on the concerns that some Members 
have raised regarding ethics. Some have looked at the Lloyd's of London 
investment and thought of it as being simply irreconcilable with proper 
service on the Court.
  The committee did a very thorough job of examining this area. I think 
most Members would be interested to know that there was not a single, 
solitary case pointed out where Judge Breyer had ever exhibited a bias, 
much less had any direct interest. Second, I think Members were 
impressed with the almost unbelievably meticulous method that the judge 
followed to ensure not only that he had no interest in any case that 
came before him, but that there was no indirect, minor connection to 
any of his interests.
  Thus, whether he was associated with a company or an entity or an 
individual that was affected by the direct rulings of the court or 
whether it was something that could be indirect, I think we came away 
with a feeling that he had been meticulous in trying to avoid any 
conflict.
  Moreover, Mr. President, my assessment of Judge Breyer is that he 
possesses the kind of personal and individual integrity that indicates 
he will do all he can to be objective and avoid bias or conflict. After 
all, is that not what we are worried about? Not whether someone has 
made a good investment or bad investment, not whether he has an 
investment that is far-reaching in its potential liability, but whether 
or not Judge Breyer is the kind of person who would allow their 
personal investments to influence their decision making. The record is 
quite clear. Judge Breyer has not done that.
  We have become so focused on the process, we have forgotten what 
ethics are all about. Ethics are about proper behavior. I think we 
would be remiss if we did not note that Judge Breyer has gone to 
extraordinary lengths to conduct his life in an ethical manner.
  Mr. President, I am going to vote for soon-to-be Justice Stephen 
Breyer. I am going to vote for him not because I agree with him on all 
the issues, because I do not. I am going to vote for him because I am 
convinced he is a person of great ethical commitment, he is a person of 
remarkable and sparkling wit, he is a person of extraordinarily 
intellectual capability and, most important, I am going to vote for him 
because I believe he has the commitment to objective analysis that will 
lead him to objective, fair decisions about our Constitution.
  As we search for people to serve on the highest court, that the 
quality of objectivity and independence is one that we ought to prize 
and it is one I believe Stephen Breyer possesses.
  I yield the floor, Mr. President
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER (Mr. Heflin). The Senator from Mississippi.
  Mr. LOTT. Mr. President, I yield myself 10 minutes of the time 
available on this side.
  The PRESIDING OFFICER. Senator Hatch's time has expired.
  Mr. LOTT. Mr. President, I ask unanimous consent that I be permitted 
to have 10 minutes from the remainder of time on the other side.
  I am asking for unanimous consent that I have 10 minutes to speak on 
the nomination.
  Mr. BIDEN. Mr. President, the distinguished Senator is welcome to 
have 10 minutes of our time.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. LOTT. Thank you very much. I appreciate the distinguished Senator 
from Delaware yielding me this time.
  Mr. President, I feel very strongly that, in the case of nominations, 
the President of the United States should have the benefit of the 
doubt. And even though I have been the one who has had to do a lot of 
investigating in some of the nominations, I think the record will show 
that I have voted for most of them. And I believe it is correct when I 
say, in my years in the Senate, I know it is correct, I have never 
voted against a Supreme Court nominee and I do not think I have voted 
against any Federal court nominees; maybe just one, I have not checked 
the record.
  But I do believe in giving the President the benefit of the doubt. I 
tried to do that in this instance. But these are super-important 
appointments when people are confirmed for life for the Supreme Court, 
and so I put an even higher emphasis on making my decisions on the 
Supreme Court nominees than I do on other administration appointments. 
I have done that in this case. I think the Judiciary Committee did a 
thorough job. I think there is no doubt that this judge, Stephen G. 
Breyer, is a good man, with outstanding credentials.
  But for a number of reasons, which will I will try to outline 
briefly, I have come to the conclusion that I cannot support his 
confirmation to serve on the United States Supreme Court for the rest 
of his life and I will oppose that nomination.
  Judge Breyer has certainly lived a laudable and I would say a charmed 
life. He graduated from Stanford University in 1959. He went onto a 
Marshall Scholarship at Oxford, England. After Oxford, he graduated 
from Harvard Law School in 1964. He spent almost all of his life in 
academia and Government. He has been a Supreme Court clerk, Senator 
Kennedy's chief counsel for the Senate Judiciary Committee, and a U.S. 
Court of Appeals judge since 1981.
  He is married to the former Ms. Joanna Freda Hare, daughter of Lord 
John Hare, Viscount of Blakenham. Judge Breyer's total net worth is 
about $6.5 million. He is an investor in the Lloyd's of London or, as 
they say, I believe, in England he is a ``name'' in Lloyd's of London.
  That particular investment is a major concern to me, as I will point 
out in a moment.
  I list this information because I believe if you look back over Judge 
Breyer''s record, I feel that he will have great difficulty in relating 
to the everyday life of Americans who are not millionaires, who do not 
have his background and who cannot afford to take time off to go bird-
watching, one of Judge Breyer's favorite pastimes.
  I fear Judge Breyer is a technocrat, who is more comfortable dealing 
with economic theories than with real people and their problems.
  Judge Breyer has big problems. Judge Breyer's commitment to 
fundamental rights such as the right to property and religious freedom 
is dubious, as seen from his decisions and his comments at his 
confirmation hearing. Judge Breyer's commitment to parental consent for 
a minor's abortion--which the Supreme Court ruled constitutional in 
Webster--and his views on abortion in general are questionable. Also, 
Judge Breyer's investments in Lloyd's of London insurance syndicates 
raises conflicts-of-interest questions and the possibility of huge 
future losses. Lastly, Judge Breyer's involvement in the $47 million 
sinkhole called the Boston Federal Courthouse shows he is not a good 
steward of taxpayer funds.
  Though I respect Judge Breyer and what he has achieved in his life, 
he is not the right man for the job of Associate Justice for the rest 
of his life. The law is more than balancing tests and economic 
theories. Law affects people and how they live. Law provides protection 
for people's rights.
  Judge Breyer has shown he has little regard for common people. He 
seems to feel that the Government has the right to take private 
property on a whim and heavily interfere with religious expression.
  In his comments to the Senate Judiciary Committee July 13, Judge 
Breyer seemed to disagree with the High Court on the status of property 
rights. In the recent Dolan case, the Court stated that the takings 
clause has the same status, weight and force as the first or fourth 
amendment. Simply, the right to property is as fundamental as the right 
to freely exercise religion or the right to be safe from illegal search 
and seizure.
  Judge Breyer in his hearings seemed to disagree with this. On page 56 
on the July 13 transcript, Judge Breyer states that the Constitution 
gives the Government more authority to regulate property than to 
regulate in other areas like free speech. Thus Judge Breyer believes, 
in contradiction to the Supreme Court, that property rights have a 
lower status and are less protected than speech rights or religious 
rights. This is against the view of the Court, and against the plain 
reading of the Constitution. Under Judge Breyer's formulation, 
Government should be able to, as it has done in the recent past, take 
private property. Americans everywhere should have shuddered when they 
heard Judge Breyer--he has little regard for the safety of private 
property.
  Judge Breyer in his opinion New Life Baptist Church Academy v. Town 
of East Longmeadow, 885 F.2d 940 (1st Cir. 1989), turns Supreme Court 
precedents concerning religious freedom on their heads. Mr. President, 
I ask unanimous consent that a memorandum from the Judicial Selection 
Monitoring Project be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 1.)
  Mr. LOTT. The New Life Baptist Church Academy claimed that town 
regulations for teacher and curricula certification did not apply to 
religious schools. The Academy did offer to voluntarily submit 
information about its curriculum, students, teachers and activities. 
The academy under the Supreme Court acting at the time didn't even have 
to offer this.
  Judge Breyer, writing for the U.S. Court of Appeals, approved of the 
town's regulations. Judge Breyer decided that the town's regulations 
were ``valid by default,'' that presumes the Government is acting 
constitutionally unless the supposed aggrieved party can find some 
better, more constitutional alternative.
  This turns what the Supreme Court had said up until that time on its 
head. Judge Breyer put the burden of proof not on the Government, where 
it belongs, but on the person or group whose rights were obviously 
violated.
  The First amendment, Mr. President, was meant to protect citizens 
from Government infringement of certain inalienable rights. Judge 
Breyer decided to turn this around. Judge Breyer's view of the first 
amendment is a recipe from tyranny. Either he misread the Constitution, 
or he meant to twist the Constitution. Either way, it is disturbing.
  On the abortion issue, Judge Breyer in Planned Parenthood League of 
Massachusetts versus Bellotti, 1989, dissented in a case that struck 
down a challenge to Massachusetts' parental consent law. Though Judge 
Breyer did not call for striking down the State law, his dissent, I 
think, shows that he is not in tune with the parents of this country, 
who overwhelmingly want to make such a tough decision with their 
children. In another case, Judge Breyer voted to overturn Bush 
administration regulations that barred workers in Federally-funded 
clinics from promoting abortion. Again, I think this shows a disregard 
for national opinion--most Americans do not want the Government 
promoting abortion. Judge Breyer thinks otherwise.
  Judge Breyer's investments in Lloyd's of London insurance syndicates 
raises serious questions about conflicts-of-interests, and Judge 
Breyer's future financial liabilities.
  Mr. President, I ask unanimous consent that an article from the 
Washington Post, entitled ``For High Court Nominee Breyer, an 
Injudicious Investment'' by James K. Glassman be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. LOTT. The article talks about the fact that these investments 
have bankrupted many people over the years. The syndicate that Judge 
Breyer is involved in already has been forced to pay about $245 million 
in cash for asbestos and environmental pollution. The eventual 
liability could be in the billions of dollars.
  Judge Breyer says that he has enough to cover further losses. The 
potential losses though, are not known--Judge Breyer could be facing 
bankruptcy within the next few years. As the article I just mentioned 
states so well, it would be an embarrassment for a Supreme Court 
Justice to go bankrupt because of financial liabilities. Judge Breyer 
says that he will be out of the syndicate ``soon.'' How soon though? 
Probably not soon enough--maybe it is too late. Richard Rosenblatt, 
head of an association of American investors in Lloyd's, was quoted in 
the Washington Post saying that Judge Breyer is ```captured for life,' 
as is his estate after his death.'' We can't have an Associate Justice 
held hostage by future financial losses.
  Another point to mention is that Judge Breyer wold probably have to 
recuse himself from the various Superfund and environmental cases that 
might come before the High Court. Judge Breyer has, unfortunately, not 
recused himself in the past from environmental cases, such as United 
States versus Ottati & Goss Inc., which dealt with penalties against 
polluters.
  Lastly, Judge Breyer, who as Chief Judge of the First Circuit Court 
of Appeals, took part in the site selection, procurement, and planning 
of the new Boston Federal Courthouse. The courthouse has yet to be 
finished, but the General Services Administration has already spent $34 
million on buying the site and $13 million for design. The current site 
for the courthouse was rated the least desirable, yet a panel chaired 
by Judge Breyer chose the site anyway. The design of the courthouse, 
which Judge Breyer actively took a part in, includes lavish design 
elements like a six-story atrium; 63 private bathrooms; 37 different 
law libraries; 33 private kitchens; $789,000 for original artwork; 
$450,000 for a boat dock, and $1.5 million for a floating marina.
  And all this for one courthouse? Judge Breyer has not adequately 
explained why tax dollars should go to a dock and 63 private bathrooms 
for a courthouse. This disdain for accounting for taxpayer dollars, I 
think, shows that Judge Breyer does not care about the people who earn 
the tax dollars to pay for that lavish Boston spread.
  These questions I have raised are troubling--they're troubling enough 
to disqualify Judge Breyer from sitting on the High Court. Because of 
these problems, I will vote against his confirmation.

                               Exhibit 1

                                                Judicial Selection


                                           Monitoring Project,

                                      Washington DC, June 7, 1994.


                         nomination memorandum

     To: Interested Parties.
     Re Judge Stephen Breyer on the free exercise of religion.
     From: Thomas L. Jipping, M.A., J.D.
       The opinion in New Life Baptist Church Academy v. Town of 
     East Longmeadow, 885 F.2d 940 (1st Cir. 1989), written by 
     Judge Stephen Breyer, President Clinton's choice to replace 
     retiring Supreme Court Justice Harry Blackmun, reflects a 
     disturbingly narrow view of the enumerated fundamental right 
     to freely exercise religion. He created what might be called 
     a ``valid by default'' standard that is both unprecedented 
     and incorrect. It turns traditional Supreme Court free 
     exercise jurisprudence on its head and gives the government 
     wide latitude in infringing on this fundamental enumerated 
     right. This decision was mentioned in our Nomination 
     Memorandum of June 1, 1994, but deserves separate treatment 
     here.


                                I. Facts

       Massachusetts law requires school attendance. For students 
     to satisfy this requirement through attendance at a non-
     public school, a local school committee must approve non-
     public education ``when satisfied that the instruction . . . 
     equals . . . that in the public schools . . . but shall not 
     withhold such approval on account of religious teaching.'' 
     The Town of Longmeadow's school committee's approval process 
     involves gathering written information about the school's 
     pupils, texts, class schedules, and curricula; reviewing the 
     academic credentials of teachers; and school visits ``to 
     observe the quality of the teaching.''
       Citing the First Amendment's free exercise clause,\1\ New 
     Life Baptist Church Academy objected both to the general 
     requirement that a secular authority must approve a religious 
     school and to the particular procedures used by the 
     Longmeadow school committee.\2\ The Academy offered to 
     administer standardized pupil tests and voluntarily submit 
     information about activities, curriculum, students, and 
     teachers. The Academy was not legally required to propose an 
     alternative approach; it may have been a sincere attempt to 
     settle the controversy.
---------------------------------------------------------------------------
     Footnotes at end of article.
---------------------------------------------------------------------------


                              ii. decision

       The U.S. District Court ``held the School Committee's 
     proposed evaluation methods unconstitutional, as violating 
     both the `free exercise' and `establishment' clauses of the 
     First Amendment.''\3\
       The U.S. Court of Appeals, in an opinion written by Judge 
     Breyer, first said that the government does have the power to 
     enforce, ``through appropriate means, a state law that 
     requires `approval' of the Academy's secular education 
     program.'\4\ Judge Breyer then reviewed and upheld the school 
     committee's approval procedures. He did so, however, after 
     creating an unprecedented and incorrect legal standard which 
     gives short shrift to the fundamental enumerated right to 
     freely exercise religion. The apparent explanation is that he 
     did what was necessary to achieve his own preferred policy 
     result rather than what the law required.


                             iii. analysis

       The First Amendment is directed at government. It assumes 
     and protects individual liberty and puts the burden on the 
     government affirmatively to justify its burden on enumerated 
     freedoms. The Supreme Court's standard in free exercise cases 
     reflects this set of priorities. The standard prevailing at 
     the time of Judge Breyer's decision\5\ was as follows:
       ``The state may justify an inroad on religious liberty by 
     showing that it is the least restrictive means of achieving 
     some compelling state interest.''\6\
       In this case, Judge Breyer ultimately applied a rule which 
     turns this standard on its head. He started by outlining four 
     questions which must be answered:
       ``Whether the Academy's religious beliefs are sincerely 
     held.''\7\
       ``Whether . . . the relevant regulation burdens the 
     exercise of those beliefs.''\8\
       ``Whether the regulation nonetheless serves a compelling, 
     or overriding, governmental interest.''\9\
       ``Whether the School Committee might nonetheless adequately 
     serve that interest in a `less restrictive,' i.e., less 
     burdensome, way.''\10\
       Judge Breyer cited the Supreme Court's landmark decision in 
     Wisconsin v. Yoder\11\ for the first three questions. They 
     are unobjectionable and obviously reflected in the Supreme 
     Court's Thomas v. Review Board standard quoted above.
       The fourth question set up a false comparison between two 
     choices--the government's approach and the Academy's 
     alternative approach--which, in turn, created a false 
     standard. This fourth question asks whether the school 
     committee can serve its compelling interest in a ``less 
     restrictive'' way. What other way could that be? The Supreme 
     Court's Thomas v. Review Board standard would say any other 
     way, since it required the government to show its action is 
     the ``least restrictive'' way. Judge Breyer, however, looked 
     only at one other way--the Academy's alternative--and 
     insisted that this one alternative literally be 
     ``constitutionally mandated''\12\ or the government's action 
     is constitutionally valid by default.
       This comparison between only two alternatives is obvious 
     throughout Judge Breyer's opinion. He wrote of ``our effort 
     to determine whether [the school's alternative] is, 
     constitutionally speaking, a `less restrictive alternative''' 
     than the government's approach.\13\ He wrote that ``the 
     question remains whether or not [the school's alternative] is 
     a `less restrictive' way to achieve the state's legitimate, 
     `compelling' goals.''\14\ He put the ultimate legal question 
     this way: ``does the Free Exercise Clause forbid the School 
     Committee to follow its proposed approval procedures rather 
     than the [school's alternative]?''\15\
       This is a false comparison. Judge Breyer's standard did not 
     focus, as the Supreme Court required, on the government's 
     action to determine whether it was the ``least restrictive 
     means.'' Rather, his standard focused on the Academy's 
     alternative to determine whether it was less restrictive 
     (i.e., more constitutional) than the government's approach. 
     He concluded that the government's approach did not violate 
     the free exercise clause because the school's alternative was 
     no less burdensome on religion.\16\
       Put simply, even if the Academy's particular alternative 
     approach--one which it did not need to present at all--were 
     not less restrictive than the government's approach, it does 
     not follow at all that the government's approach is the least 
     restrictive means of achieving its end. Under the Supreme 
     Court's clear precedents, this burden remains on the 
     government whether the Academy has offered a more restrictive 
     alternative or no alternative at all. The government must 
     affirmatively justify its burden on the free exercise of 
     religion.
       Here, Judge Breyer created a ``valid by default'' standard 
     that presumes the government's action is constitutional 
     unless the individual whose right to freely exercise religion 
     has been violated can offer an alternative that is more 
     constitutional. This standard turns the Supreme Court's free 
     exercise jurisprudence on its head and has no precedent or 
     parallel. It is a prescription for wholesale violation of the 
     right to freely exercise religion.
       Neither of the Supreme Court decisions Judge Breyer cited 
     as the source of his ``less restrictive'' fourth question 
     uses those words. Thomas v. Review Board, as quoted above, 
     requires that the government prove that its approach is the 
     ``least restrictive'' means of achieving a compelling end. 
     The other decision cited by Judge Breyer, Sherbert v. 
     Verner,\17\ makes the same point in different words: ``[I]t 
     would plainly be incumbent upon the [government] to 
     demonstrate that no alternative forms of regulation would 
     combat such abuses without infringing First Amendment 
     rights.''\18\
       Judge Breyer went to unusual lengths to distinguish this 
     case from what he called ``the leading case in which the 
     courts have upheld a `free exercise' claim against a state 
     effort to control secular education provided by a religious 
     institution,''\19\ Wisconsin v. Yoder.\20\ Judge Breyer cited 
     with approval the statement by the U.S. Court of Appeals for 
     the Sixth Circuit that ```Yoder rested on such a singular set 
     of facts that we do not believe it can be held to announce a 
     general rule.'''\21\
       This is a bizarre way to characterize a landmark Supreme 
     Court decision. Judge Breyer himself cited Yoder at least 
     nine times in his opinion and offered it as a foundation for 
     three of the four parts of the legal standard he said applied 
     to free exercise cases generally. It is strange, then, after 
     citing that decision all along, for Judge Breyer suddenly to 
     declare that ``this case [is] quite unlike Yoder,''\22\ As of 
     June 3, 1994, Yoder had been cited 806 times in state court 
     cases and 758 times in federal court cases, 43 of them by the 
     court on which Judge Breyer currently sits.


                             iv. conclusion

       Judge Breyer's opinion in New Life Baptist Church Academy 
     is judicial activism writ large. He misquoted a clear Supreme 
     Court standard and eventually turned that standard on its 
     head. His standard means that the government does not have to 
     affirmatively justify its infringement on the free exercise 
     of religion as ``least restrictive'' as the Supreme Court 
     requires. Rather, the individual whose constitutional rights 
     have been infringed must offer a more constitutional 
     alternative. Otherwise, the government's action is 
     constitutional by default, without the government ever having 
     to meet the Supreme Court's standard of proving it is the 
     least restrictive means of achieving a compelling government 
     end. That approach turns the Constitution's priorities 
     exactly backwards and puts Americans' first liberty largely 
     at the mercy of the government.


                               footnotes

     \1\The First Amendment to the U.S. Constitution states in 
     part: ``Congress shall make no law . . .  prohibiting the 
     free exercise [of religion].'' The Supreme Court has held 
     this provision also applies to the states. See Cantwell v. 
     Connecticut, 310 U.S. 296 (1940).
     \2\New Life Baptist Church Academy, 885 F.2d at 941.
     \3\Id.
     \4\Id.
     \5\In Employment Division v. Smith, 110 S. Ct. 1595 (1990), 
     the Supreme Court dramatically changed the standard for 
     justifying government infringement on the free exercise of 
     religion from the ``least restrictive means'' of achieving a 
     ``compelling state interest'' to a rational means of 
     achieving a ``legitimate'' state interest. Congress enacted 
     the Religious Freedom Restoration Act, which President signed 
     into law in 1993, to restore the old standard.
     \6\Thomas v. Review Board, 450 U.S. 707, 718 (1981).
     \7\New Life Baptist Church Academy, 885 F.2d at 944. The 
     court concluded: ``We concede that the Academy has a sincere, 
     relevant religious belief that it ought not participate in 
     any such secular approval process.'' Id.
     \8\Id. The court concluded: ``We agree with the Academy that 
     the very existence of a state approval requirement will 
     burden the exercise of its religion.'' Id.
     \9\Id. The court concluded that ``the state's interest in 
     making certain that its children receive an adequate secular 
     education is `compelling'.'' Id.
     \10\Id.
     \11\406 U.S. 205 (1972).
     \12\New Life Baptist Church Academy, 885 F.2d at 947.
     \13\Id. at 946.
     \14\Id.
     \15\Id. at 944.
     \16\Id. at 944.
     \17\374 U.S. 398 (1963).
     \18\Id. at 407.
     \19\New Life Baptist Church Academy, 885 F.2d at 951.
     \20\406 U.S. 205 (1972).
     \21\New Life Baptist Church Academy, 885 F.2d at 951, quoting 
     Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 
     1067 (6th Cir. 1987).
     \22\Id.

                               Exhibit 2

               [From the Washington Post, July 20, 1994]

        For High Court Nominee Breyer, an Injudicious Investment

                         (By James K. Glassman)

       Ten years ago, a lively young Southern heiress confided to 
     me that she had found a sensational investment--Lloyd's of 
     London. ``They just send you checks,'' she explained. ``You 
     should get into it too.''
       She described how Lloyd's works: You join a syndicate that 
     insures ships, planes or businesses. You don't have to put up 
     any money, just present a fairly modest letter of credit from 
     a bank. Than, after commissions and losses are deducted, you 
     get the profits from the premiums. She made $35,000 her first 
     year--an infinite return on an investment of zero!
       And besides, a Lloyd's investor--called by the archaic term 
     ``Name''--joins a distinguished roster that includes 
     Princesses Michael and Alexandra of Kent, golfer Tony Jacklin 
     and former prime minister Edward Heath. It's just the ticket 
     for Anglophile Americans.
       There is, however, a catch. If things go sour, your 
     liability is unlimited. ``You go to London,'' said my friend, 
     ``and they bring you into this room and sit you down at a 
     huge table, and this dude sitting across from says, `Do you 
     realize you can lose everything you own?'
       ``They tell you this so many times you get sick of it. And 
     then you sign the papers and go drink Bloody Marys and have a 
     big lunch.''
       What she was describing seemed to me, on reflection, to be 
     the Worst Investment in the World--a form of Russian roulette 
     in which some catastrophe you could not possibly foresee can 
     take away your house, car, retirement funds and (as Lloyd's 
     puts it) your ``last shirt button.''
       To make matters worse, Lloyd's investors rarely have any 
     idea what they're insuring; they are completely at the mercy 
     of the underwriter who manages their particular syndicate.
       At least four British investors, ruined by Lloyd's 
     investments, have committed suicide in recent years. But the 
     irony is that you can't even get out of Lloyd's by dying.
       In ``Ultimate Risk,'' a book about Lloyd's just published 
     in Britain, the author described how Harold Weston, a 51-
     year-old solicitor, hanged himself in April 1993 after 
     Lloyd's ``asked for more and more money'' to meet leases.
       His wife, writes the author, ``while trying to recover from 
     the trauma of her husband's death, has had to meet his 
     continuing Lloyd's losses.''
       By contrast, nearly every other investment in the world is 
     structured to prevent this sort of personal, unlimited 
     liability. For example, if you put $100,000 into a high-tech 
     stock and it goes bankrupt, the most you can lose is 
     $100,000. But a Lloyd's investor worth $6.5 million can lose 
     all $6.5 million.
       That figure is not snatched from the air. It is roughly the 
     net worth of Judge Stephen Breyer and his blue-blood British 
     wife, Joanna. Breyer's nomination to the Supreme Court was 
     cleared by the Senate Judiciary Committee yesterday.
       Breyer, a typical Lloyd's investor, earned an average of 
     $50,000 a year from the British insurer from 1988 to 1991, 
     according to his financial disclosure statements. Now, 
     however, he faces losses because one syndicate he joined, 
     called Merrett 418, is in deep, deep trouble.
       Thanks to damage claims stemming from asbestos and 
     environmental pollution, investors in Merrett 418 already 
     have been forced to cough up about $245 million in cash. 
     Chatset Ltd., an insurance consulting firm, estimates that 
     final calls will be 3.5 to 4 times as much.
       And that's just a guess. Actual liability could run into 
     the billions. For example, Merrett 418's latest report 
     admits, ``We have not been able to assess with any accuracy 
     the number of individuals injured [by asbestos], and the 
     falling off in the number of new claims long predicated on 
     logical grounds * * * has yet to occur.''
       What about Breyer himself? In a letter last December he 
     said he had about $160,000 on deposit at Lloyd's, plus 
     insurance coverage for nearly the same amount. Will that be 
     enough? No one knows.
       With so much at stake in his insurance investments, Breyer 
     has been criticized by some scholars of legal ethics for not 
     disqualifying himself from cases like United States v. Ottati 
     & Goss Inc., which involved the government's power to impose 
     liability on polluters.
       But something about Breyer worries me more: How smart and 
     judicious can someone really be if he invests in a mess like 
     Merrett 418? Is he dumb, or merely oblivious? Or does he just 
     love to gamble with his family's fortune?
       Also, imagine the prospect of a Supreme Court justice 
     facing bankruptcy because of Superfund and asbestos claims. 
     Even if he recuses himself from such cases on the high court, 
     he'll be embarrassing not only himself but the institution.
       Breyer has been trying to extricate himself from Lloyd's 
     since 1988, when he stopped investing in its syndicates. But 
     he can't resign from Merrett 418. It's like the Cosa Nostra. 
     They decide who leaves.
       ``I will be out of it as absolutely soon as I possibly 
     can,'' Breyer told the Judiciary Committee last week. But the 
     choice is not his anymore.
       In September 1990, Seascope Special Risks Ltd. offered 
     Breyer a deal: If he would pay the firm about $250,000, it 
     would assume all his future liabilities in Merrett 418. But 
     Breyer turned down the bargain, and it's unclear whether 
     he'll ever be offered an escape like this one again.
       ``Apparently,'' Breyer said in a letter to his agent in 
     London, ``I am `captured' for the rest of my life.''

  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. DeCONCINI. Mr. President, I support the nomination of Judge 
Stephen Breyer to be an Associate Justice of the Supreme Court. During 
his recent confirmation hearings, I had the opportunity to question 
Judge Breyer on a range of subjects, and I was repeatedly impressed 
with the forthcoming nature in which he discussed a number of topics. 
His candor is something which has been notable absent from many of the 
recent confirmation hearings. While he did not compromise his ability 
to hear any cases which might come before the Court, he did offer 
substantial insight into his judicial philosophy and the constitutional 
principles that guide his decisions.
  I believe that Judge Breyer will be a very positive addition to the 
Supreme Court. His career distinguishes him as a highly-qualified 
jurist, whose achievements reflect his commitment to excellence. As a 
lifelong public servant, he has shown himself to be dedicated to the 
law and the service of others. His work in all three branches of our 
Government gives Judge Breyer a unique and important perspective on our 
democracy--it is a perspective that I believe will serve him well on 
the High Court.
  His understanding of the importance of legislative history will help 
to ensure that congressional intent, and not judicial fiat, is utilized 
in interpreting statutes. His tenure as a professor will allow him to 
craft and communicate opinions which can be understood by the people 
they truly affect, and not just the lawyers. His many years of the 
first circuit have allowed Judge Breyer to develop and refine his keen 
understanding of American jurisprudence. These factors, and many 
others, led President Clinton to nominate Stephen Breyer, and they 
combine again today to result in what I believe will be his 
conformation later today.
  However, the responsibility awaiting Judge Breyer as a Supreme Court 
Justice is enormous.
  It requires making difficult decisions that affect millions of people 
throughout this Nation. It requires dedication to upholding and 
preserving the fundamental rights which are granted to each of us by 
the Constitution of this country.
  Throughout his confirmation hearing, Judge Breyer repeatedly stressed 
the importance of ensuring that the ``promise of basic fairness'' in 
the Constitution is upheld. While a technical grasp of the law is 
important, it is the dedication of each Justice to the principles of 
fairness which defines their tenure on the Court. I will vote for Judge 
Breyer.
  Having said that, there have been questions raised. First of all, the 
courthouse. It is interesting that now that the money has been 
authorized and appropriated, and this body has voted on the money for 
that courthouse, that now, all of a sudden, it becomes Judge Breyer's 
courthouse.
  The Judicial Conference has a committee that Judge Breyer sat on, and 
did chair, which recommended this particular location. It so happens 
that upon the request of the Appropriations Committee, it was pared 
back, not as much as perhaps today we think it should have been. But 
the fact is that Judge Breyer did not vote on how much money should be 
spent on that courthouse. We in this body did. Those that object now 
about the courthouse and criticize it, I wonder if they would go back 
and look and see how they voted. If they voted against that Treasury, 
postal and general government appropriations bill because of this 
courthouse, then I accept their criticism. Perhaps that is a 
disqualifier for Judge Breyer because those who elected to vote against 
that bill because of the courthouse could see that it cost too much. 
And if they could see that it cost too much, certainly Judge Breyer 
could see that it cost too much as well.
  I must say, that does not make a lot of sense to me, but at least it 
would be a rationale for someone to come out here and say, because 
Judge Breyer was the judge who was sitting on the committee that 
requested, and ultimately received, money from the Congress of the 
United States to build a courthouse, that he is the one who spent the 
money. Of course, that is nonsense.
  Now as to Judge Breyer's investments. When are we in this body going 
to realize that those of us who hold public office, whether it is in 
the judiciary branch, legislative branch, or the executive branch, are 
not perfect individuals?
  When are we going stop requiring someone who is nominated to be a 
judge, whether it is in a district court, a circuit court, or the 
Supreme Court, to have no investments, to have never written anything 
controversial, to answer everything at their hearings, to disclose all 
their decisions regarding their investments over their whole life, and 
account for any of those investments that turn sour or are not so good 
today?
  Judge Breyer made some very positive investments before he was on the 
court and during the time he was on the court. He recused himself from 
the cases that were clearly brought to his attention or that he saw 
might appear to have any improprieties or potential conflicts.
  Yes, today we know that the insurance that he had an interest in--and 
this is an interest of one out of, I believe, over 4,000 individuals, 
so it is not like he is a major owner and controller of the insurance--
happened to insure some high-risk properties and enterprises that later 
made a claim against the insurance and against this group of 
underinsurers or guarantors. And for that we are to say, ``Well, judge, 
you cannot serve on the Supreme Court because you made an investment 
that it appears is going to lose money for you and maybe it will be 
very costly.''
  There are two schools of thought as to just how costly that 
investment might be if the ultimate happened and the maximum 
contribution had to be forthcoming by the individuals who were part of 
this syndicate. We do not know. One school says it takes everything, 
including your estate. Another says, no, there are limits to 
liabilities.
  But the point is, here is a person who in good faith made an 
investment and had made similar investments, and repeatedly attempted 
to avoid any appearance of conflict. The New York Times criticizes 
Judge Breyer's investments. When is the New York Times all of a sudden 
the arbiter or should determine whether or not your economic interest 
is a conflict?
  There is no proof whatsoever, not a scintilla of evidence, that 
indicates any conflict by Judge Breyer or that he benefited by the 
decisions that he made in certain cases. There is no information that 
he benefited from that.
  In fact, it is clear that in the cases he did know about--and they 
dealt with asbestos--he recused himself. Had he known about the other 
cases, certainly he would have recused himself. Why would he not? Why 
would he say, ``I am going recuse myself on the asbestos case because 
this syndicate I have''--which is a small part of his total investment 
portfolio--``may have some conflict here or some interest in it.'' 
Which he did and properly so. But then with other cases, the inference 
is that he knew that these cases, or should have known that these 
cases, dealing with the Superfund were also insured by this syndicate. 
There is no evidence that he knew that. Nobody has actually said he 
knew. All we have heard is that he should have known.
  Nobody would think that a judge has to be without any investments, 
with no capabilities for economic support that might have come before 
he was a judge. What we want is judges to have some experience, to 
understand what the economic world is all about, and then to divest 
themselves or recuse themselves, as the case may be, when and if there 
is a case that involves this investment.
  Judge Breyer, I think, did what was proper and prudent. He has 
demonstrated that he is sensitive to this. He has been a public 
servant. He is not afraid to admit that this was a bad investment. But 
he did not know, and as I indicated, there was no evidence whatsoever, 
no one has said that he knew and went ahead and acted on those cases. 
They only said, ``Well, he should have known.''
  That is not enough, in my judgment, to criticize this fine jurist. To 
indicate that he is unqualified is to me unfair to the system of what 
we are about. That is ensuring fairness, in my opinion, to anybody who 
is promoted or nominated to an office of public trust.
  But it is also unfair to Judge Breyer. He has been an exemplary 
jurist. He was an outstanding academician. He had high marks when he 
worked at the Justice Department, and many of us knew him here on the 
Judiciary Committee when he was the chief of staff.
  So there is no good reason that I know of, common sense or otherwise, 
why this body should not overwhelmingly confirm Judge Steve Breyer, to 
be an Associate Justice of the Supreme Court.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Alabama is 
recognized.
  Mr. HEFLIN. Mr. President, I rise today in support of the nomination 
of Judge Stephen G. Breyer to be an Associate Justice on the U.S. 
Supreme Court. This nomination comes to the floor of the Senate after 4 
days of hearings and many hours of exhaustive research into the 
nominee's background. As a member of the Judiciary Committee, I have 
been involved in the nomination of seven, including Judge Breyer, of 
the nine sitting members of the present Court. Judge Breyer received a 
unanimous vote from the Judiciary Committee recommending his 
confirmation to the Supreme Court.
  Judge Breyer has spent almost his entire professional career devoted 
to public service. He received his undergraduate degree from Stanford 
University, and his law degree from the Harvard Law School, after which 
he served as a law clerk to Justice Arthur Goldberg.
  His public service continued over the years in several Federal 
positions, including the Antitrust Division of the Department of 
Justice. He served as chief counsel to the Senate Judiciary Committee 
and he was a charter member of the U.S. Sentencing Commission. Since 
1970 he has served and continues to serve on the faculty of the Harvard 
Law School.
  Stephen Breyer became Judge Breyer with his appointment to the First 
Circuit Court of Appeals in 1980. He has served for the past 14 years 
on that court and as its' chief judge since 1990. It is from his 
expansive opinions, numerous writings and personal actions, especially 
during his years on the bench, that I have been able to discern some 
insight about his judicial ability and character and his beliefs.
  The clear and candid way in which Judge Breyer addressed his answers 
to questions propounded by members of the Judiciary Committee during 3 
days of hearings proves to me what kind of judge he will be on the 
Court. I believe that he can be best described as a principled 
moderate.
  A principled moderate is the type of individual which can be a 
consensus builder. Judge Breyer has proven his ability to build a 
consensus in the decisions rendered by the first circuit, as well as on 
difficult and controversial issues of a national scale, including 
airline deregulation and as a member of the U.S. Sentencing Commission. 
He was one of the architects of airline deregulation while working as 
chief counsel to the Senate Judiciary Committee. When he served as a 
member of the Sentencing Commission he helped forge key agreements that 
formed the sentencing guidelines. It is through consensus which Judge 
Breyer believes ``helps produce the simplicity that will enable the law 
to be effective.'' I think that there is room on the Supreme Court for 
this type of a consensus builder.
  Some have claimed that his opinions are dry and lack heartfelt 
feeling and that he is a technocrat. I believe that he addressed those 
critics when he stated the reason some may find his opinions dry, is 
because, ``Law is a set of opinions and rules that lawyers have to 
understand, lower court judges have to understand, and eventually, 
labor unions, small businesses, and everyone else in the country has to 
understand how they are suppose to act or not act according to the 
law.'' Judge Breyer's view that judicial opinions should be written to 
be understood by all who may be affected by them is sound reasoning for 
what some may see as dry, emotionless legal writings.
  During the course of the hearings an issue was raised by several of 
my colleagues, concerning Judge Breyer's views on the establishment 
clause of the first amendment and the interests of the state in making 
sure that children are receiving an adequate education in private or 
home schools.
  Judge Breyer was directly asked about his ruling in New Life Baptist 
Church, a case in which he wrote the majority opinion while on the 
First Circuit Court of Appeals. In his response to Senators questions 
he voiced strong support for the rights of parents to educate their own 
children. He also stated that he firmly believed that the first 
amendment to the Constitution is designed to protect ``what is so 
important to every American and every American family: the right to 
practice your own religion, the right to pass on your beliefs to your 
children.'' But he does believe there is a delicate balance the State 
must weigh in making sure that quality education is taking place in 
schools outside the public school system.
  Critics and proponents of Judge Breyer have made an issue out of his 
pragmatic approach to cases and issues on which he has written. They 
say that during 3 days of hearings he reaffirmed his image as a 
pragmatist unlikely to embark on ideological crusades on the high 
court. If is a correct interpretation of Judge Breyer to refer to him 
as a pragmatic judge. He has been a judge who prefers, in some areas of 
the law, a pragmatic balancing test between competing rights rather 
than fixed legal formula or new interpretations of the law. Although 
this approach to legal decisions has earned him the sometimes 
description of ``technocrat,'' I believe that it has enabled Judge 
Breyer to make determinations on difficult and technical legal 
questions, as shown in his response to a question regarding antitrust, 
``we tried to focus on where the ball really is--work our way through a 
very complicated area to see if antitrust law, technically would come 
to that result.''
  As we approach the next century more and more of the calendar of the 
Supreme Court will include issues in which Judge Breyer should find 
familiar ground. The environment, science, and administrative law will 
be among the most important legal issues in the near future.
  His extensive legal writings and opinions regarding administrative 
law, I think, prove that he has the ability to understand and interpret 
administrative agency rules and regulations.
  An issue was raised late in the confirmation process of Judge Breyer 
concerning his investments in Lloyds of London, and a possible conflict 
of interest he may had in hearing certain pollution related cases. As a 
former judge myself, the fact that he did not rescue himself from 
hearing these cases, which could have an impact, even though a remote 
one, on his investments concerned me. I directly questioned Judge 
Breyer on his investments and his knowledge of them. He responded to my 
questions stating, that he was personally confident that his sitting on 
those cases did not represent a conflict of interest and that he had 
incorporated from almost day one in his court a form of checks to 
assure himself that he was not hearing cases in which he may have an 
interest.
  Lloyds of London, which has insured everything from oil tankers to 
Betty Grable's legs, is different from typical investments because the 
investor never knows exactly what his investments include, sort of like 
a mutual fund. In Judge Breyer's case he stated in testimony that he 
stopped hearing asbestos cases when he became aware, through news 
reports, that Lloyds had exposure in U.S. cases. He further stated, 
that he was not aware of the exposure in pollution related cases, but 
had disclosed his investments with Lloyds in his financial disclosure 
each year while serving on the First Circuit Court of Appeals.
  After reviewing the pollution related cases in question, I agree with 
the conclusion which eminent scholars in the field of judicial ethics 
have made. They reviewed the cases in question and have held that the 
``participation of Judge Breyer in the cases did not entail a violation 
of judicial ethics. . . . None of the cases had a connection direct 
enough with Judge Breyer as to create a basis on which his impartiality 
reasonably might be questioned.''
  Mr. President, at this time I would like to call the attention of the 
Senate to letters, one from Geoffrey C. Hazard, Jr., of the law school 
at the University of Pennsylvania, and who is the Sterling professor of 
law emeritus at Yale University, who was consultant and draftsman for 
the American Bar Association Model Code of Judicial Conduct promulgated 
in 1972 on which the rules of ethics governing Federal judges is based.
  I might say that I worked with Geoffrey Hazard at that time on 
judicial ethics. It was then a matter of working on the Supreme Court 
of Alabama, and my State was one of the first to adopt it.
  Geoffrey Hazard has also been the reporter and draftsman of the 
American Bar Association Model Rules of Professional Conduct 
promulgated in 1983, and before that consultant to the project for the 
American Bar Association Model Code of Professional Responsibility.
  He has authored many books on legal and judicial ethics, and is known 
throughout the legal profession as being the real authority on the 
issue of judicial ethics and professional conduct among lawyers.
  He reviewed all of the facts in the cases herein. He came to the 
conclusion that his participation in a number of cases involving a 
CERCLA--which is commonly known as the Superfund statute--and that none 
of these cases involved Lloyd's as a party or by name in any respect. 
``None appeared to be involved issues that would have a material or 
predictable impact on general legal obligation under the Superfund 
legislation.''
  Then he also reviews and says:

       Judge Breyer's participation in the foregoing cases did not 
     entail a violation of judicial ethics. None of the cases 
     involved Lloyd's as a party or as having an interest 
     disclosed in the litigation. None would have had a material 
     effect on Judge Breyer's financial interests. None had a 
     connection direct enough with Judge Breyer to create a basis 
     on which his impartiality might be questioned.

  He mentions to the fact that Lloyd's of London's participation by a 
name, as they are referred to, is similar to an investment in a mutual 
fund. A mutual fund, of course, is one in which there are many 
investments made, and it is impossible for a person to keep up and know 
all of the investments because many of the investments change from day 
to day in a mutual fund.
  He did raise the question that there was a possibility Judge Breyer 
might have been imprudent in connection with such an investment. But 
the possibility or cause of a possible appearance I think does is not 
raise a situation in which a judge of necessity has to recuse himself. 
He acts in regard to the matters as it would appear you will never know 
everything that would be involved really, such as with an insurance 
company. It would mean really that in effect you ought to have a canon 
of ethics that a judge ought not to invest in any insurance company. 
Well, many people inherited insurance stock. They invested in insurance 
stock at an early stage. They have tax problems dealing with that. But 
just because they have insurance does not mean that you are going to 
therefore bring about a question. If there is a named insurance 
company, then they certainly ought to recuse themselves in regard to 
that.
  I ask unanimous consent that the letter of Geoffrey C. Hazard, Jr., 
dated July 11, 1994, to the Honorable Lloyd Cutler, special counsel to 
the President, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                       Law School,


                                   University of Pennsylvania,

                                  Philadelphia, PA, July 11, 1994.
     Re Judge Stephen Breyer.
     Hon. Lloyd N. Cutler,
     Special Counsel to the President,White House,
     Washington, DC.
       Dear Mr. Cutler: Your have asked for my opinion whether 
     Judge Stephen Breyer committed a violation of judicial ethics 
     in investing as a ``Lloyd's Name'' in insurance underwriting 
     while being a federal judge. In my opinion there was no 
     violation of judicial ethics. In my view it was possibly 
     imprudent for a person who is a judge to have such an 
     investment, because of the potential for possible conflict of 
     interest and because of possible appearance of impropriety. 
     However, in light of the facts no conflict of interest or 
     appearance of conflict materialized. I understand that Judge 
     Breyer has divested from the investment so far as now can be 
     done and will completely terminate it when possible.
       1. I am Trustee Professor of Law, University of 
     Pennsylvania, and Sterling Professor of Law Emeritus, Yale 
     University. I am also Director of the American Law Institute. 
     I have been admitted to practice law since 1954 and am a 
     member of the bar of Connecticut and California. I am engaged 
     in an active consulting practice, primarily in the fields of 
     legal and judicial ethics, and have given opinions both 
     favorable and unfavorable to lawyers and judges. I was 
     Consultant and draftsman for the American Bar Association 
     Model Code of Judicial Conduct promulgated in 1972, on which 
     the rules of ethics governing federal judges are based. I 
     have also been Reporter and draftsman of the American Bar 
     Association Model Rules of Professional Conduct, 
     promulgated in 1983, and before that consultant to the 
     project for the ABA Model Conduct of Professional 
     Responsibility. I am author of several books and many 
     articles on legal and judicial ethics and write a monthly 
     column on the subject.
       2. I am advised that Judge Breyer made an investment as a 
     ``Lloyd's Name'' some time in 1978. He has since terminated 
     that investment except for one underwriting, Merrett 418, 
     that remains open. He intends to terminate that commitment as 
     soon as legally permitted. I have further assumed the 
     accuracy of the description of a Lloyd's Name investment set 
     forth in the memorandum of July 3, 1994, by Godfrey Hodgson. 
     My previous understanding of the operation of Lloyd's 
     insurance, although less specific than set forth in the 
     memorandum, corresponds to that description.
       3. I have assumed the following additional facts:
       (a) As a ``Name'' Judge Breyer Lloyd not have, and could 
     not have had, knowledge of the particular coverages 
     underwritten by the Merrett 418 syndicate. It would have been 
     possible for a Name to discover through inquiry that 
     environmental pollution as a category was one of the risks 
     underwritten by the syndicate.
       (b) Judge Breyer had ``stop-loss'' insurance against his 
     exposure as a Name, up to $188,000 beyond an initial loss of 
     25,000 pounds. This is in substance reinsurance from a third 
     source against the risk of actual liability.
       (c) A reasonable estimate of the potential loss for Judge 
     Breyer is approximately $114,000, well within the insurance 
     coverage described above. However, there is a theoretical 
     possibility that his losses could exceed that estimate.
       (d) The Merrett 418 syndicate normally would have closed at 
     the end of 1987. It remains open because of outstanding 
     liabilities to the syndicate that were not later adopted by 
     other syndicates. These outstanding liabilities include 
     environmental pollution and asbestos liability.
       4. I am advised that Judge Breyer as judge participated in 
     a number of cases that one way or another involved the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act (CERCLA), commonly known as the Superfund 
     statute. None of these cases involved Lloyd's as a party or 
     by name in any respect. None appear to have involved issues 
     that would have material or predictable impact on general 
     legal obligations under the Superfund legislation. Most of 
     the cases are fact-specific and all involve secondary or 
     procedural issues. I have assumed that the description of 
     these cases in the attached list is fair and accurate.
       5. In my opinion, Judge Breyer's participation in the 
     foregoing cases did not entail a violation of judicial 
     ethics. None of the cases involved Lloyd's as a party or as 
     having an interest disclosed in the litigation. None could 
     have had a material effect on Judge Breyer's financial 
     interests. None had a connection direct enough with Judge 
     Breyer as to create a basis on which his impartiality might 
     reasonably be questioned, as that term is used in Section 455 
     and in the Code of Judicial Ethics.
       6. There is a close analogy between the kind of investment 
     as a Name and an investment in a mutual fund. A mutual fund 
     is an investment that holds the securities of operating 
     business enterprises. Ownership in a mutual fund is 
     specifically excluded as a basis for imputed bias under 
     Section 455 and the Code of Judicial Ethics. This exclusion 
     was provided deliberately, in order to permit judges to have 
     investments that could avoid the inflation risk inherent in 
     owning Government bonds and other fixed income securities but 
     without entailing direct ownership in business enterprises. A 
     Names investment is similarly an undertaking in a venture 
     that in turn invests in the risks attending business 
     enterprise. Just as ownership in a mutual fund is not 
     ownership in the securities held by the fund, so, in my 
     opinion, is investment as a Name not an assumption of direct 
     involvement in the risks covered by the particular Lloyd's 
     syndicate.
       7. In my opinion it could be regarded as imprudent for a 
     judge to invest as a Lloyd's Name, notwithstanding that no 
     violation of judicial ethics is involved. The business of 
     insurance is complex, sometimes controversial, and widely the 
     subject of public concern and suspicion. The insurance 
     industry is highly regulated and insurance company liability 
     often entails issues of public importance. In my opinion it 
     was therefore appropriate for Judge Breyer to have withdrawn 
     from that kind of investment so far as he could legally do 
     so, simply to avoid any question about the matter. That said, 
     I see nothing in his conduct that involves ethical 
     impropriety.
           Very truly yours,
                                           Geoffrey C. Hazard, Jr.

  Mr. HEFLIN. Mr. President, I would also like to enter into the Record 
a letter from John P. Frank, who is an outstanding lawyer, who has been 
involved in the matter of the American Bar Association in rewriting its 
Cannons of Judicial Ethics. Mr. Frank, originally a law clerk to 
Justice Hugo Black, is an outstanding lawyer in Phoenix, AZ. And he has 
written in regard to this matter that in his opinion the activities 
that have been brought out and brought to light in regard to this 
constitute no violation of the Canons of Judicial Ethics. He clearly 
says that Judge Breyer properly did not disqualify himself in the 
pollution cases that came before him.
  I ask unanimous consent that this letter from John Frank of the law 
firm of Lewis & Roca of Phoenix, AZ, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    July 12, 1994.

            Judge Stephen G. Breyer Disqualification Matter


                    i. identification--john p. frank

       Mr. Frank is a partner at the law firm of Lewis and Roca, 
     Phoenix, Arizona, who has been heavily involved in 
     disqualification matters over the decades. He is the author 
     of the seminal article on that subject in the 1947 Yale Law 
     Journal. He was subpoenaed by the Senate Judiciary Committee 
     to testify as an expert on disqualification in connection 
     with the nomination of Judge Haynsworth to the Supreme Court 
     in 1969. In the aftermath of that episode, the Congress took 
     to rewrite the Disqualification Act, creating the present 
     statute, 28 U.S.C. Sec. 455. Simultaneously, a commission 
     under the chairmanship of Chief Justice Roger Traynor of 
     California for the American Bar Association was rewriting its 
     canon of judicial ethics. Mr. Frank because, informally, 
     Senate representative in negotiations with the ABA Traynor 
     Commission to achieve both a canon and a new statute which 
     would be nearly the same as possible. Senator Bayh and Mr. 
     Frank appeared before the Traynor Commission, Mr. Frank 
     worked out a mutually satisfactory canon/bill with Professor 
     Wayne Thode of Utah, reporter for the Traynor Commission. The 
     canon was then adopted by the Traynor Commission and 
     essentially put into bill form by Senators Bayh and Hollings. 
     Major witnesses for the bill on the Senate side were Senators 
     Bayh and Hollings, and Mr. Frank. On the House side, Judge 
     Traynor and Mr. Frank jointly lobbied the measure through. 
     Mr. Frank is intimately acquainted with the legislative 
     history and well acquainted with subsequent developments.
       The foregoing outline is my final conclusion on this 
     subject. I am aided not merely by numerous attorneys in my 
     own office, but also by Gary Fontana, a leading California 
     insurance law specialist of the firm of Thelan, Marrin, 
     Johnson & Bridges of San Francisco.


                               ii. issue

       In his capacity as an investor, Judge Stephen G. Breyer has 
     been a ``Name'' on various Lloyds syndicates up to a maximum 
     of 15 at any one time over an 11-year period from 1978 
     through 1988. This means, essentially, that he is one of a 
     number of investors who have put their credit behind the 
     syndicates to guarantee that claims arising under certain 
     insurance policies directly written or reinsured by the 
     syndicates are paid. If the premiums on the policies and 
     the related investment income outrun the losses, expenses 
     and reinsurance, there is payment to the Names. If there 
     is a shortfall, the Names must make up the difference. For 
     an extensive description of the Lloyds system, see ``Guide 
     to the London Insurance Market,'' BNA 1988, and 
     particularly chapter 3 on underwriting syndicates and 
     agencies. As the full text shows, this is a highly 
     regulated enterprise, a matter of consequence in relation 
     to views of Chief Justice Traynor expressed below.
       The syndicates commonly reinsure North American companies 
     against a vast number of hazards. Among these probably are 
     certain hazards arising in connection with pollution which 
     may relate to the ``superfund,'' a financing mechanism of the 
     United States for pollution clean-up. A question has been 
     raised as to whether, in any of the various cases in which 
     Judge Breyer has sat involving pollution, he may have been 
     disqualified. The identical question could arise in 
     connection with any number of other cases in which Judge 
     Breyer has sat because the syndicates have infinitely more 
     coverage than pollution. The selectivity of the current 
     interest is probably due to nothing but the colorful nature 
     of pollution or the failure of some inquiring reporter to see 
     the problem whole.
       A very significant factor is that the Lloyds syndicates are 
     not merely insurers or re-insurers. They are also investment 
     companies and much of their revenue comes from investments in 
     securities.


                              iii. answer

       Should Judge Breyer have disqualified in any pollution 
     cases in which he participated because of his Name status?
       Answer: No.


      iv. disqualification standards as applied to this situation

                       A. Party Disqualification

       Under the statute, if a judge has an interest in a party, 
     no matter how small, he must disqualify. Knowledge is 
     immaterial; a judge is expressly required to have such 
     knowledge so that he can meet this responsibility. Since the 
     statute, judges have had to narrow their portfolios; ``I 
     didn't know'' is not even relevant.
       We may put this strict criteria of disqualification aside 
     because neither Lloyds nor any of the syndicates is a party 
     to any of these cases. This of vital importance because this 
     is the one strict liability disqualification criterion in 
     this situation.

                      B. The Common Fund Exception

       Congress in Sec. 455 did not mean to preclude judges from 
     investing; this was fully recognized both in Sec. 455 and the 
     canons; H.R. Rep. No. 1453, 93d Cong., 1st Sess. at 7 (Oct. 
     9, 1974). Judges have a range of income expectations and an 
     investment is quite appropriate. Investment is restricted 
     only where it would lead to needless perils of 
     disqualification.
       In that spirit, Sec. 455(d)(4)(i) recognizes that judge may 
     invest in funds which are themselves investment funds and 
     while the judge cannot sit in any case which involves the 
     fund, he is exempted from a duty of disqualification in 
     matters involving securities of the fund unless he 
     participates in the management of the fund, Sen. Hrg. 1973 at 
     97, which Judge Breyer did not do. ``Investments in such 
     funds should be available to a judge,'' id, This section was 
     intended to create ``a way for judges to hold securities 
     without needing to make fine calculations of the effect of a 
     given suit on their wealth,'' New York Develop, Corp. v. 
     Hart, 796 F.2d 976,980 (7th Cir. 1986). As Chief Justice 
     Traynor said of this exception, it is ``because of the 
     impossibility of keeping track of the portfolio of such a 
     fund,'' Sen. Hrg. 1973, House of Rep. Subcomm. Jud. Com. on 
     S. 1064, May 24, 1974 (hearafter H.R. Hrg. 1974), p. 16.
       The relevant section is as follows:
       ``(i) Ownership in a mutual or common investment fund that 
     holds securities is not a ``financial interest'' in such 
     securities unless the judge participates in the management of 
     the fund;''
       1. A large Lloyds syndicate is a ``common investment 
     fund.'' There is a definition in Reg. Sec. 230.132 of 
     ``common trust fund,'' which is a particular type of bank 
     security specifically exempted from the Securities Act of 
     1933 pursuant to Section 3(a)(2). The only useful portion of 
     that definition is ``maintained exclusively for the 
     collective investment and reinvestment of monies contributed 
     thereto by one or more [bank] members . . .'' A ``common 
     enterprise'' is one of the four elements of a ``investment 
     contract'' as set forth in the Howey case:
       ``[A]n investment contract for purposes of the Securities 
     Act means a contract, transaction or scheme whereby a 
     person [1] invests his money, [2] in a common enterprise, 
     and [3] is led to expect profits, [4] solely from the 
     efforts of a promoter or third party . . . .''
       SEC v. W.J. Howey Co., 328 U.S. 293, 298 (1946). The common 
     enterprise requirement is usually satisfied by a number of 
     investors who have a similar stake in the profitability of 
     the venture.
       2. While the precise form of common fund involved here was 
     not contemplated in the statute, functionally a Lloyds 
     investment is the same as any other common fund investment. 
     It is an investment in a common fund in which the judge has 
     no practical way of knowing on what he may make a return.


                  v. the non-party exception criteria

       Under Sec. 455(d)(4), ``financial interest'' covers 
     ``ownership of a legal or equitable interest, however small'' 
     and then moves on to an additional thing, ``or a relationship 
     as director, advisor, or other active participant in the 
     affairs of a party.'' This, too, is under the ``however 
     small'' criterion, Sen. Hrg. 1978 at 115. This disqualifies 
     the judge if he is a creditor, debtor, or supplier of a party 
     if he will be affected by the result; but his only applies to 
     a party, id. 115. A different standard is applied under 
     Sec. 455(d)(4)(iii) to any ``proprietary interest'' similar 
     to mutual insurance or mutual savings. Here the disqualifying 
     interest must be ``substantial''; the ``however small'' 
     standard is inapplicable. There is more latitude here than in 
     the other relationships and these can be usefully described 
     as the ``non-party'' involvement of the judge. I have 
     elaborated on this topic in ``Commentary'' 1972 Utah Law 
     Review Sec. 77, which has reflected the views of Professor 
     Thode of the Utah Law School, reporter on the canon, and 
     which is referenced in the legislative history of Sec. 455, 
     Sen. Hrg. 1978 at 113.
       This covers the relationship of the judge not in terms of 
     his direct financial interest in a party (as to which his 
     disqualification is absolute and unawareness is not relevant) 
     but rather covers non-party interest. For classic 
     illustration, if the home of a judge is in an irrigation 
     district and if he is passing on the validity of the charter 
     of the irrigation district itself, the answer to 
     that question may affect the value of this home. As owner, 
     he is not at all a party to the case and he has no 
     financial interest in the irrigation company, but he is 
     affected. The distinction in these non-party cases is that 
     here the interest, instead of being measured by the 
     ``however small'' criteria must be ``substantial'' and 
     also in converse to the direct financial interest, must be 
     knowing. Statement of Prof. E. Wayne Thode, Hearing, 
     Subcomm. Sen. Jud. Com. on S. 1064, July 14 and May 17, 
     1973 (hereafter Sen. Hrg. 1978), pp. 95, 97, 108, and the 
     illustration given is shareholder a domestic bank where 
     decision concerning another bank will have ``substantial 
     in effect on the value of all banks.'' For a comprehensive 
     discussion of the ``direct and substantial'' approach to 
     nonparty interests, see Sollenbarger v. Mt. States Tel. & 
     Tel. Co., 706 F. Supp. 780-81 (D.N.M. 1989).
       If ``a judge owns stock of a company in the same industry 
     as one of the parties to the case,'' he is not 
     ``substantially affected'' by the outcome and is not 
     disqualified, as the Fifth Circuit held in In re Placid Oil 
     Co., 802 F.2d 783 (5th Cir. 1986), reh'g den., 805 F.2d 1030 
     (5th Cir. 1986). The judge in Placid Oil owned stock in a 
     bank and was not disqualified from hearing a case that could 
     affect the banking industry.
       In Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 
     F.2d 1157, 1166 (5th Cir. 1982), cert. den., 464 U.S. 814 
     (1983), and Ogala Sioux Tribe v. Homestake Min. Co., 722 F.2d 
     1407, 1414 (8th Cir. 1983), cert. den., 455 U.S. 907 (1982) 
     both judges' interests in land adjoining the land in 
     litigation was held not to be a disqualifying interest. The 
     parties seeking disqualification in both cases argued that 
     all land within the territory would be directly affected by 
     the outcome of the litigation, which was a title dispute. 
     That argument was rejected in both cases because the 
     disposition of the litigation would not affect the judges' 
     title in any way.
       A rare case involving insurance in a disqualification 
     controversy is Weingart v. Allen & O'Hara, Inc., 654 F.2d 
     1096, 1107 (5th Cir. 1981). The judge in Weingart owned three 
     life insurance policies, ``representing mutual ownership'' in 
     a corporation which wholly owned the defendant corporations. 
     Based in part on Advisory Committee Opinion No. 62, that a 
     judge insured by a mutual insurance company is not 
     disqualified to hear cases involving that company unless he 
     was also a stockholder, the court held ``the judge's mere 
     ownership of three life insurance policies, representing 
     mutual ownership, in the parent corporation of a party to the 
     suit does not demonstrate that the outcome of the proceeding 
     could have substantially affected the value of the ownership 
     interest.'' Id. at 1107.
       In Department of Energy v. Brimmer, 673 F.2d 1287 (Temp. 
     Emerg. Ct. of Apps. 1982) the court held a judge hearing a 
     case involving an Entitlement Program, who had stock 
     ownership in other Entitlement Programs, was not 
     disqualified. In reaching this conclusion the court used a 
     two step analysis; 1) did the judge have a financial interest 
     in the subject matter in controversy, and, if not, 2) did the 
     judge have some other interest that could be substantially 
     affected by the outcome of the litigation.
       The court held the judge did not have a financial interest 
     in the subject matter of the litigation, with a brief 
     analysis:
       ``The use of the term `subject matter' suggests that this 
     provision of the statute will be most significant in in rem 
     proceedings. See E. Wayne Thode, Reporters Notes to A.B.A. 
     Code of Judicial Conduct, 66 (1973). We hold that the judge 
     does not have a direct economic or financial interest in the 
     outcome of the case, and thus could hear it without 
     contravening the constitutional due process.''
       Here is where Judge Breyer drops completely out of the 
     disqualification circle. In the financial relationship of any 
     of his cases to the totality of his dividend potential, his 
     Name is utterly trivial and, in any case, he not only does 
     not know that a litigant is insured with the syndicates but, 
     realistically, has no practical way of finding out. As the 
     legislative history clearly shows, it is intended in these 
     situations, generally speaking, that for a judge not to be 
     kept currently informed is an affirmative virtue, or else the 
     persons controlling the investments, as in a common fund 
     situation, would have the power to disqualify a judge by 
     making an investment and forcing the knowledge on the judge. 
     This was deliberately considered in the legislative history 
     as a hazard and was guarded against. An opinion, closely 
     analogous, shared by several district judges, is whether 
     Alaskan district judges must disqualify in cases claiming 
     ``amounts for the Alaska Permanent Fund, from which dividends 
     can flow to, among others, district judges. Held, no 
     disqualification; the amounts are too remote and speculative, 
     Exxon Corp. v. Heinze, 792 F.Supp 77 (D. Ala. 1992). For 
     perhaps the leading case that a judge should not disqualify 
     for a contingent interest where he is not a party but, 
     speculatively, might get a small dividend some day, see In re 
     Va. Elec. Power Co., 539 F.2d 357 (4th Cir. 1976).


                     VI. Appearance Of Impropriety

       This leaves the generalized provision of Sec. 455(a) that a 
     judge shall disqualify where ``his impartiality might 
     reasonably be questioned.'' This is commonly caught up in the 
     phrase which has a long history, pre-Sec. 455 ABA and U.S. 
     Supreme Court opinions. The amorphous quality of the phase 
     makes it hard to deal with decisively. However, the phrase 
     has gained technical meaning in both the legislative 
     history and the cases; categorically it does not mean that 
     pointing a finger and expressing dismay is enough. 
     Moreover, when, as developed above, certain types of 
     investment are expressly allowed under the statute, it 
     will be difficult to make them ``improper.''
       The 1974 Act eliminated the ``duty to sit,'' permitting the 
     judge to disqualify where his impartiality may reasonably be 
     questioned. Both Justice Traynor and Mr. Frank advised the 
     Senate committee that this disqualification was to be 
     determined by ``what the traditions and practice have been,'' 
     Sen. Hrg. 1978 at 15. These do not authorize disqualification 
     for ``remote, contingent, or speculative interest,'' or 
     ``Indirect and attenuated interest''; In re Drexel Burnham 
     Lambert Inc., 861 F.2d 1307, reh'g den, 869 F.2d 116, cert. 
     den. 490 U.S. 1102 (1988); TV Communications Network, Inc. v. 
     ESPN, Inc., 767 F. Supp. 1077 (D. Colo. 1991).
       It is here that the common fund exception has great bearing 
     by analogy. Such an investment involves the same factors 
     which motivated the common fund exception. That is to say, 
     the statutes mean to preserve the right of judges to invest 
     and clearly except from the rigorous disqualification 
     standards investments in common funds where the judge has no 
     effective way of knowing precisely what interests may be 
     within the scope of the investments. Functionally an 
     investment in Lloyds is the same as an investment in any 
     common fund with general holdings. In these circumstances, 
     there cannot be an ``appearance of impropriety'' in an 
     investment which is just the same, functionally, as those 
     expressly protected.


      vii. the disqualification claim, if accepted, would produce 
                  unreasonable and unintended results

       As noted in the preliminary observations to this 
     memorandum, the concern here is grossly excessive. The 
     syndicates have a broad reach. The returns to the Names could 
     be affected by numerous other matters beside pollution 
     claims. For a comprehensive discussion of the proposition 
     that there is no ground for disqualification because a case 
     may affect general rules of law, see New York City Develop. 
     Corp. v. Hart, 796 F.2d 976, 979 (7th Cir. 1986) (``Almost 
     every judge will have some remote interest of this sort.'')
       Almost any case relating to the business community could 
     relate to Lloyds in some remote way, and any number of cases 
     can relate to other reaches of the business community. Even 
     the criminal cases, in at least some instances, can have 
     significant business fallout, as for example, the RICO cases. 
     To say that Judge Breyer should have recused himself from all 
     pollution cases would logically be to say that judges should 
     not invest in a business generally.
       I reiterate that neither the canon nor Sec. 455 meant to 
     preclude investment by judges. The focus on the pollution 
     cases is excessively sharp because, if there were 
     disqualification here, there would necessarily be 
     disqualification as to too many other aspects of investment. 
     This would defeat the purpose of the canons and the statute.


                            viii. conclusion

       Judge Breyer properly did not disqualify in the pollution 
     cases which came before him.
                                                    John P. Frank.

  Mr. HEFLIN. Mr. President, I also ask unanimous consent that a letter 
signed by Thomas W. Brunner and Susan D. Sawtelle of the law firm of 
Wiley, Rein & Fielding in Washington, DC, in which they have written 
pertaining to pollution cases be printed in the Record. They come to 
the conclusion that a higher review makes clear that no case in which 
Judge Breyer participated had any substantial or predictable effect on 
his interest as an investor in Lloyd's of London or the financial 
position of the insurers generally.
  I ask unanimous consent that the material be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       Wiley, Rein & Fielding,

                                    Washington, DC, July 11, 1994.
     Lloyd Cutler,
     Counsel to the President, White House Counsel's Office, 
         Washington, DC.
       Dear Mr. Cutler: You have asked us to evaluate whether any 
     case decided by Judge Stephen Breyer under the Comprehensive 
     Environmental Response, Compensation, and Liability Act 
     (``CERCLA''), 42 U.S.C. Sec. 9601 et seq., could have 
     substantially affected the financial interests of insurers. 
     We represent insurers extensively in connection with 
     insurance coverage matters arising under CERCLA. In addition 
     to representing individual insurers, we and our colleagues 
     represent the Insurance Environmental Litigation Association 
     (``IELA''), a trade group of 21 large property/casualty 
     insurers that appears as amicus curiae in numerous 
     environmental coverage cases at the appellate level. Mr. 
     Brunner has over a decade of direct experience in 
     representing the interests of insurers in disputes arising 
     under CERCLA. Ms. Sawtelle, in addition to representing 
     insurers, has an extensive background in CERCLA and 
     environmental matters generally, having served as an EPA 
     official (as Special Assistant to the Director, Office of 
     Solid Waste, from 1985 to 1987) with responsibility in this 
     area, and having represented numerous potentially responsible 
     parties (``PRPs'') in private practice since 1981. As a 
     consequence, we are able to provide you with a realistic 
     appraisal of the significance of CERCLA cases for insurers 
     generally and Lloyds of London syndicates specifically, based 
     on a great deal of experience evaluating CERCLA matters for 
     insurers and others.
       We have reviewed all eight cases in which Judge Breyer has 
     passed on CERCLA issues. In our opinion, none of these cases 
     had a material or predictable financial impact on insurers 
     generally or on Lloyds syndicates in particular. Any 
     consequences for insurers were highly speculative and 
     dependent on many independent intervening factors. Any 
     conceivable impact on the financial interests of insurers 
     from these cases resulted only from the court assuring that 
     PRPs received proper procedural protections, or that the 
     statute's provisions were applied properly, before parties 
     were held liable for costs that might possibly be determined 
     to be insured by some insurer. None of the cases determined 
     the obligation of any insurer nor of any PRP for which an 
     insurer might be liable. In real world terms, Judge Breyer's 
     financial interest in these cases as a result of his status 
     as a Lloyd's investor was probably more attenuated than his 
     interest as a federal taxpayer in numerous cases involving 
     financial claims against the Federal Government. In both 
     circumstances, the interest is so diluted, so contingent and 
     so indirect as to be of no consequence.
       Of the eight CERCLA cases on which Judge Breyer has sat, 
     four did not involve even potentially insurable interests of 
     PRPs. Maine v. Department of the Navy, 973 F.2d 1007 (1st 
     Cir. 1992), involved a claim for civil penalties sought by 
     Maine against the (uninsured) Federal Government. Similarly, 
     Reardon v. United States, 947 F.2d 1509 (1st Cir. 1991) (en 
     banc), involved the constitutionality of CERCLA's procedures 
     of this provision--which exempts from the class of liable 
     ``owners or operators'' those who, without participating 
     in the management of a contaminated facility, hold indicia 
     of ownership primarily to protect a security interest--
     applied to a particular sale-and-leaseback arrangement. 
     The court's opinion, which was consistent with a number of 
     other courts' rulings, was highly fact-specific and thus 
     not likely to have a material or predictable impact on the 
     insurance industry. Moreover, this dispute involved 
     private parties only, each of whom is no more likely than 
     the other to have insurance.
       Finally, in Dedham Water Co. v. Cumberland Farms Dairy, 
     Inc., 889 F.2d 1146 (1st Cir. 1989), Judge Breyer joined in 
     the court's unanimous decision that CERCLA liability arises 
     when the release of hazardous substances from the defendant's 
     facility cause the plaintiff to incur response costs, rather 
     than when the releases cause contamination on the plaintiff's 
     property. This case did not present an issue that would have 
     a material impact on the insurance industry's CERCLA 
     obligations because in a wholly private dispute such as this, 
     either or both sides might have insurance. (In a subsequent 
     opinion in the Dedham case, Judge Breyer dissented from the 
     majority regarding whether a new trial was required; this 
     opinion was unrelated to the provisions of CERCLA. See in re 
     Dedham Water Co., 901 F.2d 3 (1st Cir. 1990).)
       In sum, then, our review makes clear that no case in which 
     judge Breyer participated had any substantial or predictable 
     effect on his interest as an investor in Lloyd's of London or 
     on the financial position of insurers generally.
           Sincerely,
     Thomas W. Brunner.
     Susan D. Sawtelle.

  Mr. HEFLIN. Mr. President, I commend President Clinton on his 
excellent selection of Judge Stephen G. Breyer as his nominee. I will 
support Judge Breyer with my vote for his confirmation to serve as an 
Associate Justice on the U.S. Supreme Court. I believe that he will be 
a voice of moderation guided by principles and will work unfailing to 
preserve the Constitution in a manner which will guarantee that the 
laws of this land are interpreted in a faithful and fair manner for all 
citizens.
  I yield the floor.
  Mr. SIMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wyoming [Mr. Simpson].
  Mr. SIMPSON. Mr. President, what is the status of time?
  The PRESIDING OFFICER. The Senator from Delaware controls the 
remaining time.
  Mr. SIMPSON. How much time is remaining?
  The PRESIDING OFFICER. Forty-three minutes and two seconds.
  Mr. BIDEN. Mr. President, I am delighted to yield as much time as the 
Senator wants.
  Mr. SIMPSON. Mr. President, that is the most generous offer I have 
had yet from the chairman of the Judiciary Committee. Five minutes 
would be adequate.
  Mr. BIDEN. I have no objection.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. SIMPSON. I thank my friend from Delaware.
  He and I have just finished a vigorous conference on the crime bill, 
were released from bondage at 2:45 in the morning, and repaired to our 
chambers, rose again from the dead, and reported it at 7:30 a.m. in the 
morning. We did not complete our work exactly with bankers hours. 
Pardon the expression. That is not politically correct either.
  Mr. President, I rise in support of the nomination of Stephen Breyer 
to be an Associate Justice of the Supreme Court.
  Justice Breyer's educational accomplishments are very evident to us 
all. He has had varied experience in the executive branch, 14 years 
experience on the circuit court of appeals, but he has also served in 
the legislative branch. Several of us knew him very well, and worked 
with him as chief counsel of the Senate Judiciary Committee. He was 
exceedingly able. I had the personal ability to perceive and observe 
his work when I was a freshman member of the Judiciary Committee. In 
that position as chief counsel, he clearly demonstrated a very special 
ability to work with Members of both parties, and in particular to 
bring people of differing views together to resolve difficult issues. 
Mr. President, those are the attributes of a skilled Justice. Judge 
Breyer clearly is so very well qualified for the Supreme Court, and I 
am very pleased to support the nomination.
  Some Senators have expressed certain reservations regarding Judge 
Bryer's investments in the Lloyd's of London syndicate. I have 
expressed a view that Judge Breyer should have recused himself from all 
cases before his court involving environmental issues in which 
insurance possibly could have been involved. The Judiciary Committee, 
during the 3 days of testimony by Judge Breyer, questioned him fully, 
closely, and completely about the Lloyd's of London matter in both the 
public and in the closed session.

  Ethics experts were consulted as well. Based on Judge Breyer's 
responses and the views of experts, I am well satisfied that Judge 
Breyer acted ethically and appropriately, and I believe he will act in 
a similar fashion on the Supreme Court.
  One other issue of concern to the committee, and a number of my 
constituents, is Judge Breyer's position on home schooling and church-
operated private schools. I discussed his views on this important right 
of parents to decide exactly how their children will be educated on 
four separate occasions--on two different days at the public hearing, 
in a private meeting in my office, and an executive session the 
committee held with the nominee.
  Those discussions with Judge Breyer convinced me that he is not in 
any way a foe of home schooling or private religious schools, but 
rather that he clearly understands that the Constitution protects the 
right of parents, not only to pass their religious beliefs on to their 
children, but also to determine how they will educate them--at home, at 
a private school, or in the public schools.
  I think, too, that the President made a fine selection, a fine 
nominee, and I believe Stephen Breyer will be a fine successor to 
Justice Blackmun, a splendid gentleman who has served with great 
distinction on the Court, and who I have come to admire greatly. He 
will be a superb addition to the High Court.
  I thank the Chair and yield the floor.
  Mr. KENNEDY. Mr. President, I yield myself such time as I might use.
  Mr. President, I believe we are coming to the conclusion of what I 
think has been an excellent debate and discussion and presentation by a 
number of our colleagues that have been on the Judiciary Committee and 
have paid attention to the considerations of the Judiciary Committee. I 
am enormously grateful to all of them. I know that Judge Breyer is, as 
well, for the courtesies and for the way that the hearings were held.
  Once again, I pay tribute to the chairman of the Judiciary Committee, 
Senator Biden, and Senator Hatch, as well, and the staffs, for the way 
the hearings were scheduled, the preparation that was made available to 
the members of the committee and to the Senate, the way the hearings 
were conducted, and the range of witnesses that were heard. I think it 
was a real service to the institution and a service to the country, as 
well. I think all of us are grateful to them for bringing us to where 
we are this afternoon.
  I know that a few Senators--very few, I believe--have expressed some 
concern about Judge Breyer's judicial philosophy and about his 
investment in Lloyd's of London, and certain other issues. The 
Judiciary Committee hearings analyzed all of these issues thoroughly. 
Judge Breyer was extremely forthcoming in his responses, and I believe 
he has passed every test with flying colors.
  After hearing his responses, all members of the committee voted for 
the confirmation. The vote by the full Senate will not be quite as 
unanimous, but I believe it should be, and I suspect it would be if all 
100 Senators had the opportunity to participate in our Judiciary 
Committee hearings and discuss their concerns with Judge Breyer 
himself.
  I, again, commend President Clinton for a truly outstanding 
nomination. President Clinton is an outstanding lawyer himself, and he 
knows excellence when he sees it. Judge Breyer is the epitome of 
excellence in the law, and he eminently deserves the high position.
  It is said that it is our laws of wise restraints that make us free. 
Judge Breyer has the wisdom, experience, ability and integrity to apply 
the Constitution and the laws of the United States fairly for the 
benefit of all Americans. Stephen Breyer will make an outstanding 
Justice of the United States Supreme Court. Future Senates will be 
proud of him, and so will the country.
  I urge the Senate to confirm him.
  Mr. HATCH. Mr. President, just one last sentence about this 
candidate. We know him. He is a man of integrity and a man of 
exceptional legal ability. He is a person who understands the role of 
the courts and our constitutional process. He is a student of 
constitutional law and, frankly, he is a good choice.
  I compliment the President for choosing him. I believe we are ready 
to go to a vote. We are only waiting for the majority leader to make 
his concluding remarks.
  Mr. BIDEN. Mr. President, I yield myself 60 seconds to speak to one 
issue--the issue of whether or not we, the committee, the majority and 
minority, thoroughly looked at the potential conflict-of-interest 
question raised here.
  I ask unanimous consent that I may have printed in the Record a 
chronology of what the committee staff and the committee did relative 
to that issue.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Lloyd's of London Investment--Thoroughness of Committee Questioning

                   (By Senator Joseph R. Biden, Jr.)

       During the Judiciary Committee's hearing on the nomination 
     of Judge Stephen Breyer on July 12, 13, and 14, members of 
     the committee asked Judge Breyer dozens of questions about 
     his investment in Lloyd's of London. He was asked extensively 
     about the cases that he participated in involving Superfund 
     and environmental pollution issues as well as the procedures 
     that he used to screen out potential conflicts of interest. 
     Of course, that testimony has been made available to all 
     Senators.
       Moreover, prior to Judge Breyer's hearing, every member of 
     the committee was provided with hundreds of documents 
     relevant to the Lloyd's investment. Again, all of those 
     documents have been made available to all Members of the 
     Senate.
       Judge Breyer's testimony about this investment in Lloyd's 
     and his standards for recusal was thoughtful and forthright. 
     In my view, Judge Breyer was candid with the committee about 
     the details of the investment and his approach to the issue 
     of recusal.
       With respect to the recusal issue, in particular, the 
     committee received assessments of Judge Breyer's actions from 
     several well known and respected legal and judicial ethics 
     experts and practitioners, including University of 
     Pennsylvania Law School, Geoffrey Hazard, Jr., New York 
     University Law School Professor Stephen Gillers, and John 
     Frank of Lewis & Roca. Each of them has concluded that Judge 
     Breyer's actions fully complied with current applicable 
     recusal standards. I enclose those letters for the Record.
       In addition, Thomas Brunner and Susan Sawtelle of Wiley, 
     Rein & Feilding have expressed the opinion that no case in 
     which Judge Breyer participated had any substantial or 
     predictable effect on his interest as an investor in Lloyd's 
     or on the financial position of insurers generally.
       While one individual, Monroe Freedman, a Hofstra law 
     professor, was critical of Judge Breyer, the others stated 
     clearly that Judge Breyer had done nothing unethical.
       After unlimited questioning and careful consideration of 
     all relevant information by each member of the committee, 
     Judge Breyer was unanimously reported favorably to the Senate 
     on July 19, 1994. Committee members were satisfied that Judge 
     Breyer has acted ethically and has fully complied with the 
     current applicable ethical standards.
                                  ____

                                              New York University,


                                                School of Law,

                                       New York, NY, July 8, 1994.
     Lloyd Cutler,
     Counsel to the President, White House Counsel's Office, 
         Washington, DC.
       Dear Mr. Cutler: You have asked me to answer the following 
     question: Did Judge Stephen Breyer violate section 455 of 
     title 28 of the United States Code (``Sec. 455'') by sitting 
     on eight cases involving CERCLA when he was a ``name'' in a 
     Lloyd's of London syndicate that insured against 
     environmental pollution among other risks?
       I have been asked to assume (a) that Judge Breyer did not 
     know and could not have known the identities of the 
     syndicate's insureds or the terms of their policies; (b) that 
     Judge Breyer did know or could have known that environmental 
     pollution was one of the risks against which the syndicate 
     insured; and (c) that Judge Breyer was exposed to a possible 
     loss of 25,000 pounds, had insurance against additional loss 
     of up $188,000, and that reasonable estimates are that his 
     actual loss will not exceed the insurance coverage though 
     they could.
       In answering your question, I am going to disregard the 
     assumption in (c) and assume instead that at the time Judge 
     Breyer sat on the eight CERCLA cases he had at least 25,000 
     of financial exposure and possibly more.
       I have reviewed the eight CERCLA cases. In my opinion, 
     Judge Breyer did not violate Sec. 455.
       A judge may not sit in a case in which the judge or certain 
     family members have a ``financial interest, however small'' 
     in a ``party'' or in the `'subject matter in controversy.'' 
     Sec. 455(b)(4), (d)(4). Judge Breyer had no financial 
     interest in the parties to the CERCLA case nor in their 
     subject matter. An example of the latter would be a judge's 
     stock ownership in a company that, though not a party to a 
     proceeding, was the subject of control between the actual 
     parties.
       Where the judge has an interest other than a ``financial 
     interest'' in a party or in the subject matter in 
     controversy, different rules apply. The judge is not then 
     disqualified ``however small'' his or her interest. The size 
     of the judge's ``other interest'' then matters: It must be 
     ``subsantia[l].'' Sec. 455(b)(4).
       This difference recognizes two truths: The public is less 
     likely to suspect a judge's impartiality when the judge's 
     interest is other than in a party or the subject matter in 
     controversy; and if any ``other interest,'' even 
     insubstantial ones, could disqualify judges, the scope of 
     disqualification would be too broad with no public gain. 
     ``[W]hen an interest is not direct, but is remote, 
     contingent, or speculative, it is not the kind of interest 
     which reasonably brings into question a judge's 
     impartiality.'' In re Drexel Burnham Lambert Inc., 861 F.2d 
     1307, 1313 (2d Cir. 1988) (construing Sec. 455(a), discussed 
     below).
       Section 455(b)(4) and (b)(5)(iii) recognize the different 
     policies when a judge's interest is not in a ``party'' or in 
     the ``subject matter in controversy.'' These provisions 
     require recusal only when the judge (or certain family 
     members) have ``any other interest that could be 
     substantially affected by the outcome of the proceeding.'' 
     Sec. 455(b)(4).
       This different standard has two distinguishing elements. 
     First, the effect on the judge's interest must be 
     substantial. Second, the world ``could'' has been repeatedly 
     construed to require that the effect of ``the outcome of the 
     proceeding'' on the judge's interest must be not be 
     ``indirect'' or ``speculative.'' In re Placid Oil Co., 802 
     F.2d 783, 786-77 (5th Cir. 1986). Construing Sec. 455(b)(4) 
     in Placid Oil, the Court wrote: ``A remote, contingent, and 
     speculative interest is not a financial interest within the 
     meaning of the recusal statute . . . nor does it create a 
     situation in which a judge's impartiality might reasonably be 
     questioned.'' Id. at 787.
       The Court's last reference, to ``impartiality,'' brings us 
     to Sec. 455(a), which requires recusal when a judge's 
     ``impartiality might reasonably be questioned.'' While 
     Sec. 455(a) and Sec. 455(b) overlap, they are are congruent. 
     Liteky v. United States, 114 S.Ct. 1147 (1994). Nevertheless, 
     here, I reach the same conclusion under both provisions.
       Placid Oil is an instructive case. It was brought against 
     23 banks, seeking recision of credit agreements and other 
     relief ``based on a number of alleged wrongful acts of the 
     Banks.'' Id. at 786. Plaintiffs sought recusal of the 
     district judge, who was alleged to have ``a large investment 
     in a Texas bank that may be affected by rulings in this 
     case.'' Plaintiffs argued that ``any rulings adverse to 
     the Banks will have a dramatic impact on the entire 
     banking industry and thus on [the judge's] investment as 
     well,'' thereby giving the judge a ``financial interest in 
     the litigation.'' Id. The Circuit rejected the recusal 
     effort: We find no basis here for requiring recusal. We 
     are unwilling to adopt a rule requiring recusal in every 
     case in which a judge owns stock of a company in the same 
     industry as one of the parties to the case. * * * Id. This 
     position was followed in Gas Utilities Co. of Alabama, 
     Inc., v. Southern Natural Gas Co., 996 F.2d 282 (11th Cir. 
     1993), Cert. denied, 114 S.Ct. 687 (1994).
       I see no evidence that the decisions in Judge Breyer's 
     CERCLA cases ``could'' have a direct and substantial effect 
     on his interest in a syndicate that has insured against the 
     risk of liability for environmental pollution. Without 
     parsing every case here, I found their holdings to be 
     relatively narrow, some quite limited. For most of the cases, 
     it would be impossible to say how the holding could affect 
     Judge Breyer's own interests or those of the syndicate in 
     which he invested. For all of the cases, the Judge's interest 
     is ``not direct, but is remote, contingent, or speculative.'' 
     In re Drexel Burnham Lambert, supra at 1313.
       Given the twin requirements of substantiality and the 
     caselaw definition of ``could'' as used in Sec. 455(b), Judge 
     Breyer did not have to recuse himself in the eight CERCLA 
     cases. He did not violate Sec. 455.
           Sincerely yours,
                                                  Stephen Gillers.
                                  ____

                                              New York University,


                                                School of Law,

                                          New York, July 15, 1994.
     Hon. Joseph R. Biden,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Biden: The White House Counsel's Office has 
     given me a copy of Professor Monroe Freedman's letter to you 
     of July 13, 1994, and asked me to reply to it. Since the 
     letter takes issue with my July 8, 1994 letter to the White 
     House Counsel, I appreciate having this opportunity to do so. 
     The issue, of course, is whether Chief Judge Stephen Breyer 
     violated 28 U.S.C. Sec. 455 when he sat in certain pollution 
     cases while he was also a ``Name'' in a Lloyd's syndicate. I 
     will assume general familiarity with the facts and the prior 
     correspondence.
       Professor Freedman is in my opinion in error when he 
     charges Judge Breyer with illegal conduct. Professor Freedman 
     has misconstrued the governing rules and ignored governing 
     precedent. I shall explain how presently. First, though, the 
     Committee should be aware of a critical doctrine that has not 
     yet been identified.
       Section 455, which derives from the 1972 ABA Code of 
     Judicial Conduct, states the Congressional rules for recusal 
     of a federal judicial officer. The section has two kinds of 
     rules: categorical rules and standards. The categorical rules 
     require no judgment. They either apply or they do not. The 
     standards, by contrast, require judgment.
       An example of a categorical rule is Sec. 455(b)(5)(i), 
     which would require a judge to step aside if the judge's 
     ``spouse, or a person within the third degree of relationship 
     to either of them *** Is a party to the proceeding ***.'' 
     This circumstance either exists or it does not. If it 
     does, recusal is required.
       The two provisions of Sec. 455 that have been cited in 
     connection with Judge Breyer (until Professor Freedman 
     injected a third, discussed below) contain standards, not 
     categorical rules. The first standard is that part of 
     Sec. 455(b)(4) that required recusal if the judge (as an 
     individual or fiduciary) or certain relatives of the judge 
     have ``any other interest that could be substantially 
     affected by the outcome of the proceeding.'' The second 
     standard is Sec. 455(a), which requires recusal if the 
     judge's ``impartiality might reasonably be questioned.''
       As should be clear, these two standards require a judge to 
     interpret imprecise words like ``could,'' ``substantially 
     affected,'' ``might'' and ``reasonably.'' The meaning of 
     these words (and the standards that contain them) are, of 
     course, clarified as cases construe them, but they have 
     never, and were not intended to, become fixed categories.
       When we deal with standards, we deal with a continuum. In 
     some matters, it will be self-evident that a judge's 
     ``impartiality might reasonably be questioned'' or that a 
     proceeding's ``outcome'' could ``substantially'' affect a 
     judge's interests. In other matters, the opposite will be 
     clear. But in many cases, different judges will apply the 
     standards differently.
       That doesn't mean that one judge is right and the other 
     judge wrong. It means only that as with all flexible 
     standards there will be room for disagreement. The way that 
     the judicial system accommodates this reality is pertinent to 
     the questions before the Judiciary Committee.
       Appellate courts routinely defer to a judge's decision 
     regarding application of a standard by upholding the decision 
     unless it was an ``abuse of discretion.'' Town of Norfolk 
     versus U.S. Army Corps of Engineers, 968 F.2d 1438, 1460 (1st 
     Cir. 1992); Pope versus Federal Express Corp., 974 F.2d 982, 
     985 (8th Cir. 1992). This test recognizes that there is 
     significant room for disagreement is the application of 
     standard. Reasonable minds may differ and neither will be 
     wrong.
       While Professor Freedman holds that Judge Breyer should 
     have recused himself in certain of his pollution cases, I and 
     others who study the law of judicial disqualification have 
     reached an opposite conclusion. That difference of opinion is 
     rather strong evidence that the situation confronting Judge 
     Breyer did not self-evidently require his recusal, but were 
     instead situations in which reasonable minds might differ on 
     the application of the standard. Judge's Breyer's conduct was 
     not, therefore, an abuse of discretion and Judge Breyer did 
     not violate Sec. 455 notwithstanding that another judge might 
     have elected differently.
       Not only do I believe that Judge Breyer's decision to sit 
     in the pollution cases was reasonable, I believe it was 
     right. In the balance of this letter, I will explain why 
     Sec. 455 did not disqualify Judge Breyer and where I think 
     Professor Freedman goes wrong.
       I have already quoted from Sec. 455(b)(4). A judge must not 
     sit if the judge (including certain relatives) has ``any 
     other interest that could be substantially affected by the 
     outcome of the proceeding.'' The words ``any other interest'' 
     are to be distinguished from a separate basis for recusal if 
     a judge has a ``financial interest in the subject matter of 
     the proceeding or in a party to the proceeding.'' Such a 
     ``financial interest'' requires recusal ``however small.'' 
     Section 455(d)(4).
       No one has suggested that Judge Breyer had a ``financial 
     interest'' in a party to proceedings before him. Professor 
     Freedman has rhetorically asked, however, whether Judge 
     Breyer had a ``financial interest'' in the ``subject matter'' 
     of proceedings before him. (Freedman letter at p. 8.) This 
     suggestion is wrong, as I shall discuss below.
       In order to trigger Sec. 455(b)(4)'s reference to ``any 
     other interest,'' several facts must be true (and the judge's 
     failure to recognize their truth must be an abuse of 
     discretion). These facts are that the (i) the judge has an 
     ``other interest'' that (ii) ``could be'' (iii) 
     ``substantially affected'' by (iv) ``the outcome of the 
     proceeding.''
       Judge Breyer had an investment in Lloyd's I assumed in my 
     letter to Mr. Cutler that he had unlimited financial exposure 
     on that investment. That satisfies factor (i), However, it 
     does not satisfy factor (iii), even though I am assuming that 
     Judge Breyer's financial exposure is unlimited.
       The word ``substantially'' refers to the effect on the 
     ``interest'' that the ``outcome of the proceeding'' ``could'' 
     have. Professor Thode, the Reporter for the ABA Judicial 
     Conduct Code from which this part of Sec. 455(b)(4) was 
     drawn, has written: ``Here the issue is not whether a judge 
     has a `substantial interest,' but whether the interest he has 
     could be substantially affected by a decision in the 
     proceeding before him.'' E. Thode, Reporter's Notes to Code 
     of Judicial Conduct 66 (1973) (hereafter ``Thode'').
       In measuring the possible effect of the ``outcome of the 
     proceeding'' on the judge's interest, we must construe the 
     word ``could.'' As stated, ``could'' is not a precise word. 
     ``Could'' could mean ``could conceivably'' or it could 
     require a closer nexus between the outcome of the proceeding 
     and the effect on the judge's interest. The courts have 
     construed ``could'' to require a closer nexus.
       My letter to Mr. Cutler cites two cases that require a 
     ``direct'' connection between the outcome of a proceeding and 
     the judge's interest. By contrast, a ``remote, contingent, 
     and speculative interest,'' will not suffice. In re Placid 
     Oil Co., 802 F.2d 783, 783-77 (5th Cir. 1986); Gas Utilities 
     Co. of Alabama, Inc, v. Southern Natural Gas Co., 996 F.2d 
     282 (11th Cir. 1993), cert. denied. 114 S.Ct. 687 (1994).
       While Professor Freedman suggests (p. 9) that Placid Oil is 
     ``obsolete,'' because of the Supreme Court's decision in 
     Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 
     (1988), two years later, this is wrong. First, the Eleventh 
     Circuit cited Placid Oil in 1993 for the very point made 
     here. Other courts have cited it, too, after Liljeberg. See, 
     e.g., McCann v. Communications Design Corp., 775 F. Supp. 
     1535 (D. Conn. 1991).
       Second, the facts of Liljeberg are dramatically different 
     from those in Placid Oil. In Liljeberg, a university with 
     which the judge had a fiduciary relationship would (as a 
     result of contractual obligations and real estate values) 
     gain millions of dollars if the judge awarded the rights to a 
     certificate of need for a hospital to the defendant. That 
     gave the judge, as fiduciary, an interest ``however small'' 
     in the subject of the litigation (the certificate) and also 
     an interest that could be substantially affected by the 
     outcome of the proceeding. The facts of Liljeberg show a 
     ``direct'' effect on the judge's interest as a fiduciary, and 
     of course the effect was substantial.
       Permit me to make this clearer with an example. Assume that 
     the outcome of a case will nearly certainly cause a $100 
     decline in the value of the judge's stock interest. The 
     effect, then, is ``direct,'' but the judge's financial 
     interest is not ``substantially affected'' because the amount 
     is too small. Now assume an omniscient observer could tell us 
     that the outcome of a proceeding will have 1/1000th of a 
     chance of causing the judge's stock interest to decline by 
     $100,000. There, the effect is substantial but it is not 
     ``direct.''
       Professor Freedman cites two cases in which he concludes 
     Judge Breyer should not have participated. Did the Judge 
     abuse his discretion by concluding that the decisions in 
     these cases could not have a direct and substantial affect on 
     his financial interest in Lloyd's? That is the question.
       One issue in United States v. Ottati & Goss, Inc., 900 F.2d 
     429 (1st Cir. 1990), the issue Professor Freedman cites, was 
     whether a federal judge had to grant the EPA the precise 
     injunction it requested (so long as the request was not 
     arbitrary) or whether instead the judge had broader 
     discretion. Judge Breyer held that the judge had broader 
     discretion.
       Professor Freedman writes that Judge Breyer should not have 
     properly decided that case because it ``involved the [EPA's] 
     powers to impose liability on polluters like those the Judge 
     knew he was insuring.'' (Freedman letter at p. 6.) This is 
     just wrong. It is not the standard. Professor Freedman cannot 
     say with any degree of confidence that the decision in Ottai 
     & Goss would have a direct and substantial effect on the 
     judge's interests. Furthermore, Professor Freedman leaves 
     out an important part of the case. The EPA had two routes 
     for seeking judicial injunctions. It had proceeded under 
     one of them. Judge Breyer expressly acknowledged that if 
     it had proceeded via the other route (seeking enforcement 
     of a nonarbitrary EPA order), ``the court must enforce 
     it.'' Id at 434.
       Now think about the chain of events one would have to 
     envision to get from the holding in Ottai & Goss to the 
     conclusion that Judge Breyer's interests could be directly 
     and substantially affected. One would have to say that 
     because a trial judge will have discretion whether to grant 
     an EPA injunction when the EPA proceeds along one route 
     rather than another, it could happen that in another case the 
     EPA would elect that first route in an action against an 
     insured of Judge Breyer's Lloyd's syndicate, that the judge 
     in that case will deny EPA the injunction it seeks (relying 
     on the discretion Judge Breyer's opinion affords), that the 
     syndicate would not have to pay to comply with the particular 
     injunction EPA wanted, and that the effect from all this on 
     Judge Breyer's pro rata financial interest in the syndicate 
     would be ``substantial.'' That chain of events is what the 
     caselaw means when it uses the words ``remote, contingent, 
     and speculative.''
       Professor Freedman also cites Reardon v. United States, 947 
     F.2d 1509 (1st Cir. 1991). Reardon is even a more farfetched 
     example than Ottai & Goss. Judge Breyer sat on an en banc 
     court that held that, absent exigent circumstances, due 
     process required ``notice of an intention to file a notice of 
     lien and provision for a hearing if the property owner 
     claimed that the lien was wrongfully imposed.'' Id. at 1522. 
     Professor Freedman wrongly says that the decision ``held that 
     the EPA did not have the power to impose the lien.'' (letter 
     at p. 7) It did, so long as it gave notice of its intention 
     to do so and afforded a hearing thereafter.
       Professor Freedman connects Reardon to the situation at 
     hand this way: ``The loss represented by that lien is the 
     same kind of loss that Judge Breyer was liable to reimburse 
     as an insurer.'' (letter at p. 7.) This is beyond 
     ``speculative.'' What ``loss'' is Professor Freedman 
     referring to? Think about the extended chain of events one 
     would have to describe to get from the Reardon holding to 
     Judge Breyer's interests. The EPA would have to give 
     notice of an intent to impose a lien on property of an 
     insured of the Judge's Lloyd's syndicate. Then, before the 
     EPA could file its lien, the recipient of the notice would 
     have had to defeat that effort by making a quick 
     disposition of the property, thereby defeating the EPA's 
     security interest. As a result of that disposition, 
     somehow (I'm not clear how) the syndicate would escape its 
     insurance responsibility and the pro rata savings to Judge 
     Breyer in particular would have to be substantial. Readon 
     simply does not support Professor Freedman's conclusion.
       Before I leave Sec. 455(b), I want to recognize that a 
     ``remote, contingent, and speculative'' interest is not the 
     same as no conceivable interest whatsoever. A system of 
     judicial recusal must balance between the risk of real or 
     apparent personal interest, on the one hand, and an unduly 
     broad standard that disqualifies a large number of judges 
     (for severely limits their investments), on the other. A 
     broad standard would lead cautious judges to step aside no 
     matter how improbable an effect on their interests. I believe 
     the courts have struck the right balance. But the line will 
     sometimes be unclear, calling on the judge to exercise 
     discretion.
       On occasion, by definition, even a remote interest will 
     become a reality. Today's issue of Newsday reports that a 
     loser in a case before Judge Breyer sued a Lloyd's syndicate 
     for reimbursement of its expenditures under an insurance 
     policy the loser had with Lloyd's. The syndicate may or may 
     not have been Judge Breyer's syndicate. Let's assume it was 
     Judge Breyer's syndicate. That is part of the price of a 
     balanced rule. A rule that prohibited a judge from sitting if 
     a decision could have any conceivable effect on his or her 
     interests would have its own (in my view less appealing) 
     price.
       In addition, I have been asked to assume that Judge Breyer 
     did not and could not have known the particular insureds 
     under his Lloyd's syndicate. Section 455(b) quite clearly 
     requires knowledge.
       Professor Freedman also relies on Sec. 455(a), which 
     requires recusal if a judge's ``impartiality might reasonably 
     be questioned.'' Apparently, Professor Freedman believes it 
     to have been an abuse of discretion for Judge Breyer not to 
     recuse himself under this provision.
       Section 455(a) requires recusal when an ``objective, 
     disinterested, observer fully informed of the facts 
     underlying the grounds on which recusal was sought would 
     entertain significant doubt that justice would be done'' in 
     the particular case. Union Carbide Corp. v. U.S. Cutting 
     Service, Inc., 782 F.2d 710, 715 (7th Cir. 1986). I do not 
     believe that conclusion can be reached on the facts of the 
     cases in which Judge Breyer sat. Certainly, it was not an 
     abuse of discretion to reject application of Sec. 455(a) as 
     so defined.
       A stronger objection to Sec. 455(a) exists. As I mentioned 
     in my letter to Mr. Cutler, while not congruent, Sec. 455(a) 
     and Sec. 455(b) do overlap. As a matter of statutory 
     interpretation, it is improper to resort to Sec. 455(a) when 
     Congress has specifically legislated criteria for recusal in 
     the particular circumstances described in Sec. 455(b) and 
     these criteria are absent. As the Court wrote in Liteky v. 
     United States, 114 S.Ct. 1147, 1156 n.2 (1994), ``it is poor 
     statutory construction to interpret (a) as nullifying the 
     limitations (b) provides, except to the extent the text 
     requires.''
       Here, Sec. 455(b)(4), as construed in caselaw, requires 
     that the outcome of the proceeding before the judge have both 
     a direct and substantial effect on the judge's interests. 
     Liteky tells us that we should not use Sec. 455(a) to 
     ``nullify'' these requirements. Specifically, here, we should 
     not use Sec. 455(a) to require recusal where the effect is 
     ``remote'' or ``speculative'' or ``contingent.'' In any 
     event, the same test is employed to reject recusal under 
     Sec. 455(a). In re Drexel Burnham Lambert, Inc. 861 F.2d 
     1307, 1313 (2d Cir. 1988) (remote, contingent, or speculative 
     interest does not reasonably bring judge's impartiality into 
     question.)
       Let me conclude by addressing two other of Professor 
     Freeman's points. First, he suggests that Judge Breyer might 
     have had a ``financial interest'' in the ``subject matter'' 
     of the cases before him because the legal issue he decided 
     could arise in a case involving his Lloyd's syndicate. 
     Professor Freedman does not even adopt this view himself. 
     He says merely that ``some have read'' the phrase 
     ``subject matter in controversy'' to include the remedy, 
     like the lien at issue in Reardon. He also writes that 
     ``[o]ne could similarly say'' that EPA enforcement powers 
     in Ottati & Goss were the ``subject matter'' of that 
     controversy.
       ``One'' could, of course, ``say'' many things, just as 
     ``some'' may have ``read'' the statute a variety of ways. But 
     the fact is that no authority supports the view that a judge 
     can have a ``financial interest'' in a question of law. As 
     Professor Thode explained, the ``subject matter'' language 
     ``becomes significant in in rem proceedings.'' Thode at 65. 
     Another example is Liljeberg, where the university on whose 
     board the judge sat had a financial interest riding on the 
     holder of the certificate of need, which was the subject 
     matter before the judge. This is not a case like Tumey v. 
     State of Ohio, 273 U.S. 510 (1927), cited by Professor 
     Freedman, where the adjudicator had a financial interest in 
     the very fine he imposed on the defendant because he would 
     receive part of it.
       Professor Freedman suggests (p. 5) that Judge Breyer 
     violated his duty to keep himself informed of his financial 
     interests. Section 455(c). My letter was premised on two 
     assumptions about what Judge Breyer knew or could have known 
     and what he did not know and could not have known. I charged 
     him with knowledge of what he could have known but he can't 
     be faulted with not knowing what he could not have known.
       Thank you for this opportunity.
           Sincerely,
                                                  Stephen Gillers.
                                  ____

                                                       Law School,


                                   University of Pennsylvania,

                                  Philadelphia, PA, July 11, 1994.
     Re Judge Stephen Breyer.

     Hon. Lloyd N. Cutler,
     Special Counsel to the President,
     White House,
     Washington, DC.
       Dear Mr. Cutler: You have asked for my opinion whether 
     Judge Stephen Breyer committed a violation of judicial ethics 
     in investing as a ``Lloyd's Name'' in insurance underwriting 
     while being a federal judge. In my opinion there was no 
     violation of judicial ethics. In my view it was possibly 
     imprudent for a person who is a judge to have such an 
     investment, because of the potential for possible conflict of 
     interest and because of possible appearance of impropriety. 
     However, in light of the facts no conflict of interest or 
     appearance of conflict materialized. I understand that Judge 
     Breyer has divested from the investment so far as now can be 
     done and will completely terminate it when possible.
       1. I am Trustee Professor of Law, University of 
     Pennsylvania, and Sterling Professor of Law Emeritus, Yale 
     University. I am also Director of the American Law Institute. 
     I have been admitted to practice law since 1954 and am a 
     member of the bar of Connecticut and California. I am engaged 
     in an active consulting practice, primarily in the fields of 
     legal and judicial ethics, and have given opinions both 
     favorable and unfavorable to lawyers and judges. I was 
     Consultant and draftsman for the American Bar Association 
     Model Code of Judicial Conduct promulgated in 1972, on which 
     the rules of ethics governing federal judges are based. I 
     have also been Reporter and draftsman of the American Bar 
     Association Model Rules of Professional Conduct, 
     promulgated in 1983, and before that consultant to the 
     project for the ABA Model Conduct of Professional 
     Responsibility. I am author of several books and many 
     articles on legal and judicial ethics and write a monthly 
     column on the subject.
       2. I am advised that Judge Breyer made an investment as a 
     ``Lloyd's Name'' some time in 1978. He has since terminated 
     that investment except for one underwriting, Merrett 418, 
     that remains open. He intends to terminate that commitment as 
     soon as legally permitted. I have further assumed the 
     accuracy of the description of a Lloyd's Name investment set 
     forth in the memorandum of July 3, 1994, by Godfrey Hodgson. 
     My previous understanding of the operation of Lloyd's 
     insurance, although less specific than set forth in the 
     memorandum, corresponds to that description.
       3. I have assumed the following additional facts:
       (a) As a ``Name'' Judge Breyer did not have, and could not 
     have had, knowledge of the particular coverages underwritten 
     by the Merrett 418 syndicate. It would have been possible for 
     a Name to discover through inquiry that environmental 
     pollution as a category was one of the risks underwritten by 
     the syndicate.
       (b) Judge Breyer had ``stop-loss'' insurance against his 
     exposure as a Name, up to $188,000 beyond an initial loss of 
     25,000 pounds. This is in substance reinsurance from a third 
     source against the risk of actual liability.
       (c) A reasonable estimate of the potential loss for Judge 
     Breyer is approximately $114,000, well within the insurance 
     coverage described above. However, there is a theoretical 
     possibility that his losses could exceed that estimate.
       (d) The Merrett 418 syndicate normally would have closed at 
     the end of 1987. It remains open because of outstanding 
     liabilities to the syndicate that were not later adopted by 
     other syndicates. These outstanding liabilities include 
     environmental pollution and asbestos liability.
       4. I am advised that Judge Breyer as judge participated in 
     a number of cases that one way or another involved the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act (CERCLA), commonly known as the Superfund 
     statute. None of these cases involved Lloyd's as a party or 
     by name in any respect. None appear to have involved issues 
     that would have material or predictable impact on general 
     legal obligations under the Superfund legislation. Most of 
     the cases are fact-specific and all involve secondary or 
     procedural issues. I have assumed that the description of 
     these cases in the attached list is fair and accurate.
       5. In my opinion, Judge Breyer's participation in the 
     foregoing cases did not entail a violation of judicial 
     ethics. None of the cases involved Lloyd's as a party or as 
     having an interest disclosed in the litigation. None could 
     have had a material effect on Judge Breyer's financial 
     interests. None had a connection direct enough with Judge 
     Breyer as to create a basis on which his impartiality might 
     reasonably be questioned, as that term is used in Section 455 
     and in the Code of Judicial Ethics.
       6. There is a close analogy between the kind of investment 
     as a Name and an investment in a mutual fund. A mutual fund 
     is an investment that holds the securities of operating 
     business enterprises. Ownership in a mutual fund is 
     specifically excluded as a basis for imputed bias under 
     Section 455 and the Code of Judicial Ethics. This exclusion 
     was provided deliberately, in order to permit judges to have 
     investments that could avoid the inflation risk inherent in 
     owning Government bonds and other fixed income securities but 
     without entailing direct ownership in business enterprises. A 
     Names investment is similarly an undertaking in a venture 
     that in turn invests in the risks attending business 
     enterprise. Just a ownership in a mutual fund is not 
     ownership in the securities held by the fund, so, in my 
     opinion, is investment as a Name not an assumption of direct 
     involvement in the risks covered by the particular Lloyd's 
     syndicate.
       7. In my opinion it could be regarded as imprudent for a 
     judge to invest as a Lloyd's Name, notwithstanding that no 
     violation of judicial ethics is involved. The business of 
     insurance is complex, sometimes controversial, and widely the 
     subject of public concern and suspicion. The insurance 
     industry is highly regulated and insurance company liability 
     often entails issues of public importance. In my opinion it 
     was therefore appropriate for Judge Breyer to have withdrawn 
     from that kind of investment so far as he could legally do 
     so, simply to avoid any question about the matter. That said, 
     I see nothing in his conduct that involves ethical 
     impropriety.
           Very truly yours,
                                           Geoffrey C. Hazard, Jr.
                                  ____


          Judge Breyer's ``CERCLA'' (Superfund Statute) Cases

       Judge Breyer has participated in eight cases involving the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act (CERCLA), the Superfund statute. None involved 
     Lloyds as a party or by name in any other respect. Moreover, 
     none involved the kind of issue that would have a direct or 
     predictable impact on the insurance industry's Superfund 
     obligations, much less on Lloyd's itself.
       The cases address a variety of matters. Most are highly 
     fact-specific. Included among them are decisions that enforce 
     an EPA penalty against a chemical company; apply the judicial 
     doctrine of res judicata (which bars relitigation of the same 
     matter); and confirm the federal government's sovereign 
     immunity from state requests for civil penalties on CERCLA 
     claims.
       A summary of the cases is attached.
       1. Waterville Industries, Inc. v. Finance Authority of 
     Maine, 984 F.2d 540 (1st Cir. 1993). The issue in this case 
     was the ``security interest exception'' in CERCLA, which 
     exempts from the statute's definition of ``owner'' a ``person 
     who, without participating in the management of a vessel or 
     facility, holds indicia of ownership primarily to protect his 
     security interest in the vessel or facility.'' In an opinion 
     by Judge Boudin, joined by Judge Breyer, the court 
     interpreted the provision and unanimously agreed with the 
     Finance Authority of Maine that it met the requirements of 
     the provision.
       Particularly because there is no reason to think that a 
     lender, a borrower, or a property owner is more or less 
     likely to have insurance, the case does not present the kind 
     of issue that would have a direct or predictable impact on 
     the insurance industry's Superfund obligation.
       2. State of Maine v. Dept. of Navy, 973 F.2d 1007 (1st Cir. 
     1992). In this case, the state of Maine sued the United 
     States Navy because one of the Navy's shipyards had not 
     complied with Maine's federally-approved hazardous waste 
     laws. The only CERCLA-related issue was whether the CERCLA 
     statute waives the federal government's traditional sovereign 
     immunity against suits by states for civil penalties. Judge 
     Breyer's opinion held that the CERCLA statute does not waive 
     the federal government's sovereign immunity.
       3. Reardon v. United States, 947 F.2d 1509 (1st Cir. 1991) 
     (en banc). The issue in this case was whether landowners are 
     entitled to notice and an opportunity to be heard before the 
     EPA is allowed to place a lien on their property. In an 
     opinion by Judge Torruella, joined by Judge Breyer, the First 
     Circuit applied a recent Supreme Court precedent, which had 
     found a Connecticut attachment lien statute violated due 
     process. The First Circuit held that CERCLA's lien provision 
     had a similar flaw.
       The case thus gives people the right to notice and an 
     opportunity to be heard before a lien is put on their 
     property. It concerns the timing of procedures, and in no way 
     eliminates, lessens, or affects the liability of landowners 
     who are responsible for clean-up costs.
       4. All Regions Chemical Labs v. EPA, 932 F.2d 73 (1st Cir. 
     1991). In this case, Judge Breyer's opinion upheld the EPA's 
     imposition of a $20,000 penalty against a chemical company 
     that failed to notify the EPA immediately about the release 
     of hazardous substances from its property.
       In this highly fact-specific case, the decision upholds the 
     EPA's penalty, over the private company's objection.
       5. Johnson v. SCA Disposal Services of New England, 931 F. 
     2d 970 (1st Cir. 1991). Judge Brown's opinion, joined by 
     Judge Breyer, applies the judicial doctrine of res judicata, 
     which prohibits relitigation of the same matter. It does not 
     address CERCLA or Superfund issues.
       6. United States v. Kayser-Roth, 910 F. 2d 24 (1st Cir. 
     1990). In an opinion by Judge Bownes, joined by Judge Breyer, 
     the court agreed with EPA that a parent company could be 
     found to be an ``operator'' liable for clean-up costs even if 
     the site was nominally run by a subsidiary. The court also 
     agreed with the EPA that the trial court properly found that 
     the parent company was an ``operator'' in this case.
       The decision does not present the kind of issue that would 
     have a direct or predictable impact on the insurance 
     industry's Superfund obligations. (In many CERCLA cases, 
     there are numerous private parties with conflicting 
     allocation claims, and imposing liability on parent 
     corporations might have different effects on different 
     insurers at different times).
       7. United States v. Ottati & Goss, 900 F. 2d 429 (1st Cir. 
     1990). In this decision by Judge Breyer, the court agreed 
     with the district court that, when EPA requests a preliminary 
     injunction under a particular CERCLA provision, the district 
     court has discretion and is not, contrary to EPA's 
     submission, obliged to defer to EPA's request for an 
     injunction unless it is ``arbitrary or capricious.'' The 
     First Circuit emphasized that ``to read the statute in this 
     way does not significantly handicap EPA'' because the agency 
     may receive full administrative deference at a subsequent 
     stage of the proceedings. The Court of Appeals also reviewed 
     the district court's factual findings, agreed with EPA that 
     the district court should further consider one matter, and 
     found that the district court's other findings were supported 
     by the record. The court also ruled on various miscellaneous 
     issues, including one in which it agreed with EPA that the 
     district court should further consider whether EPA should be 
     entitled to recover certain costs.
       None of the holdings in the case presents the kind of issue 
     that would have a direct or predictable impact on the 
     insurance industry's Superfund obligations. The standard for 
     district court consideration of requests for preliminary 
     injunctive relief concerns only district court discretion at 
     a preliminary stage of the proceedings. The factual issues, 
     moreover, are highly case-specific and dependent on the 
     record in the particular case.
       8. Dedham Water Co. v. Continental Farms Diary, 889 F. 2d 
     1146 (1st Cir. 1989). In this opinion by Judge Bownes, the 
     First Circuit agreed with other courts that a plaintiff need 
     show only that a defendant's release of hazardous wastes 
     caused it to incur response costs, not that the wastes 
     actually contaminated the plaintiff's property. Particularly 
     because either side in such a dispute might have insurance, 
     the case does not present the kind of issue that would have a 
     material or predictable impact on the insurance industry's 
     Superfund obligations. (A subsequent opinion in the case 
     specified that a new trial was required. Judge Breyer 
     dissented, arguing that the district court should have 
     discretion to further consider the matter. The issue was 
     unrelated to CERCLA or Superfund. In re Dedham Water Co., 901 
     F. 2d 3 (1st Cir. 1990)).
                                  ____



                                       Lewis and Roca Lawyers,

                                                    July 12, 1994.
     Lloyd N. Cutler, Esq.
     Counsel to the President, The White House Counsel's Office, 
         Washington, DC.
     Re Judge Stephen G. Breyer.
       Dear Mr. Cutler: In connection with the pending hearings on 
     Judge Stephen G. Breyer for the Supreme Court, I submit the 
     attached statement requested by you on a problem of 
     disqualification of judges.
           Yours very truly,
                                                    John P. Frank.
                                  ____


            Judge Stephen G. Breyer Disqualification Matter


                    i. identification--john p. frank

       Mr. Frank is a partner at the law firm of Lewis and Roca, 
     Phoenix, Arizona, who has been heavily involved in 
     disqualification matters over the decades. He is the author 
     of the seminal article on that subject in the 1947 Yale Law 
     Journal. He was subpoenaed by the Senate Judiciary Committee 
     to testify as an exert on disqualification in connection with 
     the nomination of Judge Haynesworth to the Supreme Court in 
     1969. In the aftermath of that episode, the Congress took to 
     rewrite the Disqualification Act, creating the present 
     statute, 28 U.S.C. Sec. 455. Simultaneously, a commission 
     under the chairmanship of Chief Justice Roger Traynor of 
     California for the American Bar Association was rewriting its 
     canon of judicial ethics. Mr. Frank became, informally, 
     Senate representative in negotiations with the ABA Traynor 
     Commission to achieve both a canon and a new statute which 
     would be nearly the same as possible. Senator Bayh and Mr. 
     Frank appeared before the Traynor Commission. Mr. Frank 
     worked out a mutually satisfactory canon/bill with Professor 
     Wayne Thode of Utah, reporter for the Traynor Commission. The 
     canon was then adopted by the Traynor Commission and 
     essentially put into bill form by Senators Bayh and Hollings. 
     Major witnesses for the bill on the Senate side were Senators 
     Bayh and Hollings, and Mr. Frank. On the House side, Judge 
     Traynor and Mr. Frank jointly lobbied the measure through. 
     Mr. Frank is intimately acquainted with the legislative 
     history and well acquainted with subsequent developments.
       The foregoing outline is my final conclusion on this 
     subject. I am aided not merely by numerous attorneys in my 
     own office, but also by Gary Fontana, a leading California 
     insurance law specialist of the firm of Thelan, Marrin, 
     Johnson & Bridges of San Francisco.


                               ii. issue

       In his capacity as an investor, Judge Stephen G. Breyer has 
     been a ``Name'' on various Lloyds syndicates up to a maximum 
     of 15 at any one time over an 11-year period from 1978 
     through 1988. This means, essentially, that he is one of a 
     number of investors who have put their credit behind the 
     syndicate to guarantee that claims arising under certain 
     insurance policies directly written or reinsured by the 
     syndicates are paid. If the premiums on the policies and 
     the related investment income outrun the losses, expenses 
     and reinsurance, there is payment to the Names. If there 
     is a shortfall, the Names must make up the difference. For 
     an extensive description of the Lloyds system, see ``Guide 
     to the London Insurance Market'' BNA 1988, and 
     particularly chapter 3 on underwriting syndicates and 
     agencies. As the full text shows, this is a highly 
     regulated enterprise, a matter of consequence in relation 
     to views of Chief Justice Traynor expressed below.
       The syndicates commonly reinsure North American companies 
     against a vast number of hazards. Among these probably are 
     certain hazards arising in connection with pollution which 
     may relate to the ``superfund,'' a financing mechanism of the 
     United States for pollution clean-up. A question has been 
     raised as to whether, in any of the various cases in which 
     Judge Breyer has sat involving pollution, he may have been 
     disqualified. The identical question could arise in 
     connection with any number of other cases in which Judge 
     Breyer has sat because the syndicates have infinitely more 
     coverage than pollution. The selectivity of the current 
     interest is probably due to nothing but the colorful nature 
     of pollution or the failure of some inquiring reporter to see 
     the problem whole.
       A very significant factor is that the Lloyds syndicates are 
     not merely insurers or re-insurers. They are also investment 
     companies and much of their revenue comes from investments in 
     securities.


                              iii. answer

       Should Judge Breyer have disqualified in any pollution 
     cases in which he participated because of his Name status?
       Answer: No.


      iv. disqualification standards as applied to this situation

                       A. Party disqualification

       Under the statute, if a judge has an interest in a party, 
     no matter how small, he must disqualify. Knowledge is 
     immaterial; a judge is expressly required to have such 
     knowledge so that he can meet this responsibility. Since the 
     statute, judges have had to narrow their portfolios; ``I 
     didn't know'' is not even relevant.
       We may put this strict criteria of disqualification aside 
     because neither Lloyds nor any of the syndicates is a party 
     to any of these cases. This is of vital importance because 
     this is the one strict liability disqualification 
     criterion in this situation.

                      B. The common fund exception

       Congress in Sec. 455 did not mean to preclude judges from 
     investing; this was fully recognized both in Sec. 455 and the 
     canons; H.R. Rep. No. 1453, 93d Cong., 1st Sess. at 7 (Oct. 
     9, 1974). Judges have a range of income expectations and an 
     investment is quite appropriate. Investment is restricted 
     only where it would lead to needless perils of 
     disqualification.
       In that spirit, Sec. 455(d)(4)(i) recognizes that judges 
     may invest in funds which are themselves investment funds and 
     while the judge cannot sit in any case which involves the 
     fund, he is exempted from a duty of disqualification in 
     matters involving securities of the fund unless he 
     participates in the management of the fund, Sen. Hrg. 1973 at 
     97, which Judge Breyer did not do. ``Investments in such 
     funds should be available to a judge,'' id. This section was 
     intended to create ``a way for judges to hold securities 
     without needing to make fine calculations of the effect of a 
     given suit on their wealth,'' New York Develop. Corp. v. 
     Hart, 796 F.2d 976, 980 (7th Cir. 1986). As Chief Justice 
     Traynor said of this exception, it is `'because of the 
     impossibility of keeping track of the portfolio of such a 
     fund,'' Sen. Hrg. 1973, House of Rep. Subcomm. Jud. Com. on 
     S. 1064, May 24, 1974 (hereafter H.R. Hrg. 1974), p. 16.
       The relevant section is as follows:
       ``(i) Ownership is a mutual or common investment fund that 
     holds securities is not a `financial interest' in such 
     securities unless the judge participates in the management of 
     the fund;''
       1. A large Lloyds syndicate is a ``common investment 
     fund.'' There is a definition in Reg. Sec. 280.132 of 
     ``common trust fund,'' which is a particular type of bank 
     security specifically exempted from the Securities Act of 
     1933 pursuant to Section 3(a)(2). The only useful portion of 
     that definition is ``maintained exclusively for the 
     collective investment and reinvestment of monies contributed 
     thereto by one or more [bank] members . . .'' A ``common 
     enterprise'' is one of the four elements of an ``investment 
     contract'' as set forth in the Howey case:
       ``[A]n investment contract for purposes of the Securities 
     Act means a contract, transaction or scheme whereby a 
     person [1] invests his money, [2] in a common enterprise, 
     and [3] is led to expect profits, [4] solely from the 
     efforts of a promoter or third party. . . .''

     SEC v. W.J. Howey Co., 328 U.S. 293, 298 (1946). The common 
     enterprise requirement is usually satisfied by a number of 
     investors who have a similar stake in the profitability of 
     the venture.
       2. While the precise form of common fund involved here was 
     not contemplated in the statute, functionally a Lloyds 
     investment is the same as any other common fund investment. 
     It is an investment in a common fund in which the judge has 
     no practical way of knowing on what he may make a return.


                  V. The Non-Party Exception Criteria

       Under Sec. 455(d)(4), ``financial interest'' covers 
     ``ownership of a legal or equitable interest, however small'' 
     and then moves on to an additional thing, ``or a relationship 
     as director, advisor, or other active participant in the 
     affairs of a party.'' This, too, is under the ``however 
     small'' criterion, Sen. Hrg. 1973 at 115. This disqualifies 
     the judge if he is a creditor, debtor, or supplier of a party 
     if he will be affected by the result; but this only applies 
     to a party, id. 115. A different standard is applied under 
     Sec. 455(d)(4)(iii) to any ``proprietary interest'' similar 
     to mutual insurance or mutual savings. Here the disqualifying 
     interest must be ``substantial''; the ``however small'' 
     standard is inapplicable. There is more latitude here than in 
     the other relationships and these can be usefully described 
     as the ``non-party'' involvement of the judge. I have 
     elaborated on this topic in Commentary, 1972 Utah Law Review 
     Sec. 77, which has reflected the views of Professor Thode of 
     the Utah Law School, reporter on the canon, and which is 
     referenced in the legislative history of Sec. 455, Sen. Hrg. 
     1973 at 113.
       This covers the relationship of the judge not in terms of 
     his direct financial interest in a party (as to which his 
     disqualification is absolute and unawareness is not relevant) 
     but rather covers non-party interest. For classic 
     illustration, if the home of a judge is in an irrigation 
     district and if he is passing on the validity of the charter 
     of the irrigation district itself, the answer to 
     that question may affect the value of this home. As owner, 
     he is not at all a party to the case and he has no 
     financial interest in the irrigation company, but he is 
     affected. The distinction in these non-party cases is that 
     here the interest, instead of being measured by the 
     ``however small'' criteria must be ``substantial'' and 
     also in converse to the direct financial interest, must be 
     knowing. Statement of Prof. E. Wayne Thode, Hearing, 
     Subcomm. Sen. Jud. Com. on S. 1064, July 14 and May 17, 
     1978 (hereafter Sen. Hrg. 1978), pp. 95, 97, 108, and the 
     illustration given is shareholder a domestic bank where 
     decision concerning another bank will have ``substantial 
     in effect on the value of all banks.'' For a comprehensive 
     discussion of the ``direct and substantial'' approach to 
     nonparty interests, see Sollenbarger v. Mt. States Tel. & 
     Tel. Co., 706 F. Supp. 780-81 (D.N.M. 1989).
       If ``a judge owns stock of a company in the same industry 
     as one of the parties to the case,'' he is not 
     ``substantially affected'' by the outcome and is not 
     disqualified, as the Fifth Circuit held in In re Placid Oil 
     Co., 802 F.2d 783 (5th Cir. 1986), reh'g den., 805 F.2d 1030 
     (5th Cir. 1986). The judge in Placid Oil owned stock in a 
     bank and was not disqualified from hearing a case that could 
     affect the banking industry.
       In Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 
     F.2d 1157, 1166 (5th Cir. 1982), cert. den., 464 U.S. 814 
     (1983), and Ogala Sioux Tribe v. Homestake Min. Co., 722 F.2d 
     1407, 1414 (8th Cir. 1983), cert. den., 455 U.S. 907 (1982) 
     both judges' interests in land adjoining the land in 
     litigation was held not to be a disqualifying interest. The 
     parties seeking disqualification in both cases argued that 
     all land within the territory would be directly affected by 
     the outcome of the litigation, which was a title dispute. 
     That argument was rejected in both cases because the 
     disposition of the litigation would not affect the judges' 
     title in any way.
       A rare case involving insurance in a disqualification 
     controversy is Weingart v. Allen & O'Hara, Inc., 654 F.2d 
     1096, 1107 (5th Cir. 1981). The judge in Weingart owned three 
     life insurance policies, ``representing mutual ownership'' in 
     a corporation which wholly owned the defendant corporations. 
     Based in part on Advisory Committee Opinion No. 62, that a 
     judge insured by a mutual insurance company is not 
     disqualified to hear cases involving that company unless he 
     was also a stockholder, the court held ``the judge's mere 
     ownership of three life insurance policies, representing 
     mutual ownership, in the parent corporation of a party to the 
     suit does not demonstrate that the outcome of the proceeding 
     could have substantially affected the value of the ownership 
     interest.'' Id. at 1107.
       In Department of Energy v. Brimmer, 673 F.2d 1287 (Temp. 
     Emerg. Ct. of Apps. 1982) the court held a judge hearing a 
     case involving an Entitlement Program, who had stock 
     ownership in other Entitlement Programs, was not 
     disqualified. In reaching this conclusion the court used a 
     two step analysis; 1) did the judge have a financial interest 
     in the subject matter in controversy, and, if not, 2) did the 
     judge have some other interest that could be substantially 
     affected by the outcome of the litigation.
       The court held the judge did not have a financial interest 
     in the subject matter of the litigation, with a brief 
     analysis:
       ``The use of the term ``subject matter'' suggests that this 
     provision of the statute will be most significant in in rem 
     proceedings. See E. Wayne Thode, Reporters Notes to A.B.A. 
     Code of Judicial Conduct, 56 (1973). We hold that the judge 
     does not have a direct economic or financial interest in the 
     outcome of the case, and thus could hear it without 
     contravening the constitutional due process.''
       Here is where Judge Breyer drops completely out of the 
     disqualification circle. In the financial relationship of any 
     of his cases to the totality of his dividend potential, his 
     Name is utterly trivial and, in any case, he not only does 
     not know that a litigant is insured with the syndicates but, 
     realistically, has no practical way of finding out. As the 
     legislative history clearly shows, it is intended in these 
     situations, generally speaking, that for a judge not to be 
     kept currently informed is an affirmative virtue, or else the 
     persons controlling the investments, as in a common fund 
     situation, would have the power to disqualify a judge by 
     making an investment and forcing the knowledge on the judge. 
     This was deliberately considered in the legislative history 
     as a hazard and was guarded against. An opinion, closely 
     analogous, shared by several district judges, is whether 
     Alaskan district judges must disqualify in cases claiming 
     ``amounts for the Alaska Permanent Fund, from which dividends 
     can flow to, among others, district judges. Held, no 
     disqualification; the amounts are too remote and speculative, 
     Exxon Corp. v. Heinze, 792 F. Supp. 77 (D. Ala. 1992). For 
     perhaps the leading case that a judge should not disqualify 
     for a contingent interest where he is not a party but, 
     speculatively, might get a small dividend some day, see In re 
     Va. Elec. Power Co., 539 F.2d 357 (4th Cir. 1976).


                     vi. appearance of impropriety

       This leaves the generalized provision of Sec. 455(a) that a 
     judge shall disqualify where ``his impartiality might 
     reasonably be questioned.'' This is commonly caught up in the 
     phrase which has a long history, pre-Sec. 455 ABA and U.S. 
     Supreme Court opinions. The amorphous quality of the phase 
     makes it hard to deal with decisively. However, the phrase 
     has gained technical meaning in both the legislative 
     history and the cases; categorically it does not mean that 
     pointing a finger and expressing dismay is enough. 
     Moreover, when, as developed above, certain types of 
     investment are expressly allowed under the statute, it 
     will be difficult to make them ``improper.''
       The 1974 Act eliminated the ``duty to sit,'' permitting the 
     judge to disqualify where his impartiality may reasonably be 
     questioned. Both Justice Traynor and Mr. Frank advised the 
     Senate committee that this disqualification was to be 
     determined by ``what the traditions and practice have been,'' 
     Sen. Hrg. 1973 at 15. These do not authorize disqualification 
     for ``remote, contingent, or speculative interest,'' or 
     ``indirect and attenuated interest''; In re Drexel Burnham 
     Lambert Inc., 861 F.2d 1307, reh'g den, 869 F.2d 116, cert. 
     den. 490 U.S. 1102 (1988); TV Communications Network, Inc. v. 
     ESPN, Inc., 767 F. Supp. 1077 (D. Colo. 1991).
       It is here that the common fund exception has great bearing 
     by analogy. Such an investment involves the same factors 
     which motivated the common fund exception. That is to say, 
     the statutes mean to preserve the right of judges to invest 
     and clearly except from the rigorous disqualification 
     standards investments in common funds where the judge has no 
     effective way of knowing precisely what interests may be 
     within the scope of the investments. Functionally an 
     investment in Lloyds is the same as an investment in any 
     common fund with general holdings. In these circumstances, 
     there cannot be an ``appearance of impropriety'' in an 
     investment which is just the same, functionally, as those 
     expressly protected.


      VII. The Disqualification Claim, If Accepted, Would Produce 
                  Unreasonable and Unintended Results

       As noted in the preliminary observations to this 
     memorandum, the concern here is grossly excessive. The 
     syndicates have a broad reach. The returns to the Names could 
     be affected by numerous other matters besides pollution 
     claims. For a comprehensive discussion of the proposition 
     that there is no ground for disqualification because a case 
     may affect general rules of law, see New York City Develop. 
     Corp. v. Hart, 796 F.2d 976, 979 (7th Cir. 1986) (``Almost 
     every judge will have some remote interest of this sort.'')
       Almost any case relating to the business community could 
     relate to Lloyds in some remote way, and any number of cases 
     can relate to other reaches of the business community. Even 
     the criminal cases, in at least some instances, can have 
     significant business fallout, as for example, the RICO cases. 
     To say that Judge Breyer should have recused himself from all 
     pollution cases would logically be to say that judges should 
     not invest in a business generally.
       I reiterate that neither the canon nor Sec. 455 meant to 
     preclude investment by judges. The focus on the pollution 
     cases is excessively sharp because, if there were 
     disqualification here, there would necessarily be 
     disqualification as to too many other aspects of investment. 
     This would defeat the purpose of the canons and the statute.


                            VIII. conclusion

       Judge Breyer properly did not disqualify in the pollution 
     cases which came before him.
                                                     John P. Frank
                                  ____



                                       Wiley, Rein & Fielding,

                                    Washington, DC, July 11, 1994.
     Lloyd Cutler, Esq.,
     Counsel to the President, White House Counsel's Office, 
         Washington, DC.
       Dear Mr. Cutler: You have asked us to evaluate whether any 
     case decided by Judge Stephen Breyer under the Comprehensive 
     Environmental Response, Compensation, and Liability Act 
     (``CERCLA''), 42 U.S.C. Sec. 9601 et seq., could have 
     substantially affected the financial interests of insurers. 
     We represent insurers extensively in connection with 
     insurance coverage matters arising under CERCLA. In addition 
     to representing individual insurers, we and our colleagues 
     represent the Insurance Environmental Litigation Association 
     (``IELA''), a trade group of 21 large property/casualty 
     insurers that appears as amicus curiae in numerous 
     environmental coverage cases at the appellate level.\1\ Mr. 
     Brunner has over a decade of direct experience in 
     representing the interests of insurers in disputes arising 
     under CERCLA. Ms. Sawtelle, in addition to representing 
     insurers, has an extensive background in CERCLA and 
     environmental matters generally, having served as an EPA 
     official (as Special Assistant to the Director, Office of 
     Solid Waste, from 1985 to 1987) with responsibility in this 
     area, and having represented numerous potentially responsible 
     parties (``PRPs'') in private practice since 1981. As a 
     consequence, we are able to provide you with a realistic 
     appraisal of the significance of CERCLA cases for insurers 
     generally and Lloyds of London syndicates specifically, based 
     on a great deal of experience evaluating CERCLA matters for 
     insurers and others.
---------------------------------------------------------------------------
     Footnotes at end of article.
---------------------------------------------------------------------------
       We have reviewed all eight cases in which Judge Breyer has 
     passed on CERCLA issues.\2\ In our opinion, none of these 
     cases had a material or predictable financial impact on 
     insurers generally or on Lloyds syndicates in particular. Any 
     consequences for insurers were highly speculative and 
     dependent on many independent intervening factors. Any 
     conceivable impact on the financial interests of insurers 
     from these cases resulted only from the court assuring that 
     PRPs received proper procedural protections, or that the 
     statute's provisions were applied properly before parties 
     were held liable for costs that might possibly be determined 
     to be insured by some insurer. None of the cases determined 
     the obligation of any insurer nor of any PRP for which an 
     insurer might be liable. In real world terms, Judge Breyer's 
     financial interest in these cases as a result of his status 
     as a Lloyd's investor was probably more attenuated than his 
     interest as a federal taxpayer in numerous cases involving 
     financial claims against the Federal Government. In both 
     circumstances, the interest is so diluted, so contingent and 
     so indirect as to be of no consequence.
       Of the eight CERCLA cases on which Judge Breyer has sat, 
     four did not involve even potentially insurable interests of 
     PRPs. Maine v. Department of the Navy, 973 F.2d 1007 (1st 
     Cir. 1992), involved a claim for civil penalties sought by 
     Maine against the (uninsured) Federal Government. Similarly, 
     Reardon v. United States, 947 F.2d 1509 (1st Cir. 1991) (en 
     banc), involved the constitutionality of CERCLA's 
     procedures for attaching liens to real property and in no 
     way addresses the extent of financial liabilities under 
     CERCLA. All Regions Chemical Laboratories v. EPA, 932 F.23 
     73 (1st Cir. 1991), concerned the imposition of a civil 
     penalty on a chemical company for failure to report a 
     chemical release; such penalties clearly are uninsured. In 
     much the same vein, Johnson v. SCA Disposal Services, 
     Inc., 931 F.2d 970 (1st Cir. 1991), applied the doctrine 
     of res judicata, precluding relitigation of matters 
     already determined by a court, to a case that happened to 
     involve CERCLA claims but without any distinctive 
     precedential significance for CERCLA cases.
       Only four cases on which Judge Breyer has sat have even 
     considered the rights or obligations of potentially insured 
     PRPs under CERCLA. In each instance, the significance for 
     insurers has been, at most, highly indirect. United States v. 
     Kayser-Roth Corp., 910 F.2d 24 (1st Cir. 1990), cert. denied, 
     498 U.S. 1084 (1991), addressing the potential liability of a 
     parent company for its subsidiary's waste disposal practices, 
     is likely irrelevant to insurers in most instances but, if 
     not, could be either ``good'' or ``bad'' for a particular 
     insurer, depending on the circumstances of the later case. 
     Indeed, the likelihood of a perceptible impact on insurers is 
     both speculative and remote.
       Similarly, the potential impact on the insurance industry 
     of the issues in United States v. Ottati & Goss, Inc., 900 
     F.2d 429 (1st Cir. 1990), was de minimis. The case 
     principally involved whether a court must, in an injunctive 
     relief context, adopt any cleanup remedy selected by EPA 
     unless it found that selection to be arbitrary or capricious 
     or, alternately, whether it may itself decide what the remedy 
     should be. Judge Breyer, writing for the unanimous panel, 
     upheld the decision of the court below that the court may 
     fashion the remedy. This holding did not make any 
     determination of a PRP's obligations but merely prescribed 
     the procedure and degree of deference due to certain 
     preliminary EPA actions. There was only an attenuated impact 
     on PRPs and an even more attenuated connection to insurers.
       Waterville Industries Inc. v. Finance Authority of Maine, 
     984 F.2d 540 (1st Cir. 1993), involved the application of 
     CERCLA's so-called ``secured creditor exemption.'' Judge 
     Breyer joined in the court's unanimous opinion holding 
     that this provision--which exempts from the class of 
     liable ``owners or operators'' those who, without 
     participating in the management of a contaminated 
     facility, hold indicia of ownership primarily to protect a 
     security interest--applied to a particular sale-and-
     leaseback arrangement. The court's opinion, which was 
     consistent with a number of other courts' rulings, was 
     highly fact-specific and thus not likely to have a 
     material or predictable impact on the insurance industry. 
     Moreover, this dispute involved private parties only, each 
     of whom is no more likely than the other to have 
     insurance.
       Finally, in Dedham Water Co. v. Cumberland Farms Dairy, 
     Inc., 889 F.2d 1146 (1st Cir. 1989), Judge Breyer joined in 
     the court's unanimous decision that CERCLA liability arises 
     when the release of hazardous substances from the defendant's 
     facility cause the plaintiff to incur response costs, rather 
     than when the releases cause contamination on the plaintiff's 
     property. This case did not present an issue that would have 
     a material impact on the insurance industry's CERCLA 
     obligations because in a wholly private dispute such as this, 
     either or both sides might have insurance. (In a subsequent 
     opinion in the Dedham case, Judge Breyer dissented from the 
     majority regarding whether a new trial was required; this 
     opinion was unrelated to the provisions of CERCLA, See In re 
     Dedham Water Co. (901 F.2d 3 (1st Cir, 1990.)
       In sum, then, our review makes clear that no case in which 
     Judge Breyer participated had any substantial or predictable 
     effect on his interest as an investor in Lloyd's of London or 
     on the financial position of insurers generally.
           Sincerely,
     Thomas W. Brunner,
     Susan D. Sawtelle.


                               footnotes

     \1\The views expressed herein are our own and are not stated 
     on behalf of IELA or any other client of our law firm. We do 
     not represent any syndicate participating in Lloyds of 
     London.
     \2\Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 
     1146 (1st Cir. 1989); United States v. Ottati & Goss, Inc., 
     900 F.2d 429 (1st Cir. 1990); United States v. Kayser-Roth 
     Corp., 910 F.2d 24 (1st Cir. 1990), cert., denied, 498 U.S. 
     1084 (1991); Johnson v. SCA Disposal Services, Inc., 931 F.2d 
     970 (1st Cir. 1991); All Regions Chem. Labs, Inc. v. United 
     States EPA, 932 F.2d 73 (1st Cir. 1991); Reardon v. United 
     States, 947 F.2d 1509 (1st Cir. 1991); Maine v. Department of 
     Navy, 973 F.2d 1007 (1st Cir. 1992); Waterville Indus. Inc. 
     v. Finance Auth, of Me., 984 F.2d 549 (1st Cir. 1993).
                                        The Association of the Bar


                                      of the City of New York,

                                       New York, NY, July 8, 1994.


the association of the bar of the city of new york finds judge stephen 
        g. breyer qualified to be a justice of the supreme court

       The Association of the Bar of the City of New York 
     announced today that it has concluded that Judge Stephen G. 
     Breyer is qualified to be a Justice of the United States 
     Supreme Court. The statement of the Association's Executive 
     Committee is attached.
                                  ____


                               Statement


the association of the bar of the city of new york finds judge stephen 
        g. breyer qualified to be a justice of the supreme court

       The Association of the Bar of the City of New York has 
     concluded that Judge Stephen G. Breyer is qualified to be a 
     Justice of the United States Supreme Court, because he 
     possesses, to a substantial degree, all of the following 
     qualifications enumerated in the Guidelines established by 
     the Executive Committee for considering nominees to the 
     United States Supreme Court: exceptional legal ability; 
     extensive experience and knowledge in law; outstanding 
     intellectual and analytical talents; maturity of judgment; 
     unquestionable integrity and independence; a temperament 
     reflecting a willingness to search for a fair resolution of 
     each case before the Court; a sympathetic understanding of 
     the Court's role under the Constitution in the protection of 
     the personal rights of individuals; an appreciation for the 
     historic role of the Supreme Court as the final arbiter of 
     the meaning of the United States Constitution, including a 
     sensitivity to the respective powers and reciprocal 
     responsibilities of the Congress and Executive.
       Because the Executive Committee Guidelines limit approval 
     to those of high distinction, the Guidelines do not provide 
     for gradations of ratings; qualified and unqualified are the 
     only ratings employed.
       In reaching this conclusion, a subcommittee of the 
     Executive Committee read extensive materials, including all 
     of Judge Breyer's more than 500 written opinions as a judge 
     of the United States Court of Appeals for the First Circuit, 
     many of his articles, lectures and books, and numerous news 
     articles and commentaries appearing with respect to the 
     nomination. The subcommittee also conducted a number of 
     telephone interviews of former colleagues and law clerks of 
     Judge Breyer and attorneys who had appeared before him, 
     received and considered comments from the membership of the 
     Association, and interviewed Judge Breyer in person.
       The Executive Committee also took account of recent reports 
     in the press which questioned whether Judge Breyer should 
     have recused himself in cases involving ``Superfund'' 
     environmental liability under federal law, as a consequence 
     of his investments in Lloyd's of London syndicates and his 
     possible personal liability for underwriting losses. The 
     Executive Committee considered carefully the ``Superfund'' 
     cases in which Judge Breyer has participated since 1987, none 
     of which involved insurance coverage issues, as well as the 
     available evidence concerning Judge Breyer's awareness of the 
     extent and nature of possible ``Superfund'' exposure by the 
     syndicates of which he was a member, and his ability to 
     evaluate the potential impact, if any, of his decisions in 
     ``Superfund'' cases on his own financial interests.
       Based on the applicable statutory standard for 
     disqualification of federal judges (28 U.S.C. Sec. 455) and 
     the evidence currently available prior to the Senate 
     confirmation process, the Executive Committee found no reason 
     to depart from its conclusions as to Judge Breyer's judgment, 
     integrity and independence by virtue of the fact that he did 
     not recuse himself in the ``Superfund'' cases.
       The Association acted on the nomination under a policy that 
     directs the Executive Committee to evaluate all candidates 
     for appointment to the Supreme Court.
                                  ____


                               Exhibit 1

               Addition to Floor Remarks of Senator Biden

       In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 
     the Supreme Court was faced with the question whether a civil 
     rights statute, Section 1981, passed in the aftermath of the 
     Civil War protected workers from racial harassment on the 
     job.
       This statute guaranteed to all persons within the United 
     States ``the same right * * * to make and enforce contracts * 
     * * as is enjoyed by white citizens. The Court, by a narrow 
     5-4 majority, agreed that this law prohibited racial 
     discrimination in hiring--but that it did not prohibit racial 
     discrimination that occurs after a contract is made--that is, 
     after a person is hired.
       This conclusion meant that this statute did not protect 
     employees on the job from being insulted because of their 
     race, from being given demeaning work solely because of their 
     race, or even from being fired because of their race.
       Justice Brennan, whose powerful dissent was joined by three 
     justices, had this to say about the majority's reasoning:
       ``What the Court declines to snatch away with one hand, it 
     takes with the other. Though the Court today reaffirms 
     Sec. 1981's applicability to private conduct, it 
     simultaneously gives this landmark civil rights statute a 
     needlessly cramped interpretation. The Court has to strain 
     hard to justify this choice to confine Sec. 1981 within the 
     narrowest possible scope, selecting the most pinched reading 
     of the phrase `same right to make a contract,' ignoring 
     powerful historical evidence about the Reconstruction 
     Congress' concerns, and bolstering its parsimonious rendering 
     by reference to a statute enacted nearly a century after 
     Sec. 1981, and plainly not intended to affect its reach. When 
     it comes to deciding whether a civil rights statute should be 
     construed to further our Nation's commitment to the 
     eradication of racial discrimination, the Court adopts a 
     formalistic method of interpretation antithetical to 
     Congress' vision of a society in which contractual 
     opportunities are equal. I dissent from the Court's holding 
     that Sec. 1981 does not encompass Patterson's racial 
     harassment claim.''--491 U.S. at 189.

  Mr. GORTON. I quote Alexander Hamilton:

       The person ultimately appointed must be the object of his 
     preference, though perhaps not in the first degree. It is 
     also not very probable that his nomination would be 
     overruled. The Senate could not be tempted by the preference 
     they might feel to another to reject the one proposed; 
     because they could not be tempted by the preference they 
     might feel to another to reject the one proposed; because 
     they could not assure themselves that the person they might 
     wish would be brought forward by a second or by any 
     subsequent nomination.

  Mr. President, this explanation of the role of the Senate in the 
confirmation process was eloquently described by Alexander Hamilton in 
Federalist Paper No. 76. The words of our Founding Fathers are just as 
relevant today as they were 200 years ago when they empowered the 
President in article II, section 2 of the U.S. Constitution to nominate 
``with the Advice and Consent of the Senate, * * * Ambassadors, other 
public Ministers and Consuls, Judges of the Supreme Court, and all 
other officers of the United States * * *.''
  Both the Constitution and the Federalist Papers which were written to 
advocate and explain the provisions of the Constitution clearly express 
a deference to the President's choice of his administration. The 
Senate's check is intended to be used only in special circumstances 
and, as Hamilton wrote, ``to be an efficacious source of stability in 
the administration.''
  Although some may call it old-fashioned or conservative, I respect 
this deference to the President that our Framers clearly intended. I 
have done so even when President Clinton has sent nominations to the 
Senate with whose philosophies I do not completely agree. On several 
occasions, however, I have opposed a nominee based on past actions by 
that nominee which illustrate a clear political agenda that is 
intolerant of conflicting viewpoints and which reject fundamental 
principles found in our Constitution. Other nominees whom I opposed 
were simply incompetent to fulfill the responsibilities of the office 
to which they were nominated.
  The nomination of Judge Stephen Breyer to become an Associate Justice 
of the Supreme Court of the United States does not in my view, fall 
into one of the exceptions. Although he would not have been my 
selection to sit on the Court, he is obviously a highly qualified, 
well-regarded, and competent jurist who has proven his respect for and 
obedience to the Constitution. He and I disagree on his past decisions 
on the separation of church and state. That disagreement, however, 
matched by other areas in which we agree, does not compel me to reject 
this nominee whom the President certainly would replace with a less 
suitable nominee.
  While it is impossible to predict the actions taken after a Justice 
is confirmed to the bench, there is reason for conservatives to be 
optimistic that Judge Breyer will show more judicial restraint than has 
his predecessor. As conservative constitutional scholar Bruce Fein 
recently wrote in his syndicated column:

       In stark contrast to Justice Blackmun, Judge Breyer 
     displays no quixotic impulses to employ judicial power in a 
     utopian quest to correct or ameliorate all social ills. It 
     speaks volumes on that score that Judge Breyer concurred with 
     Holmes' admonition to Judge Learned Hand that the overriding 
     judicial imperative is not to do justice, but to play the 
     game according to the rules.

  In conclusion, I refer again to the helpful words of Alexander 
Hamilton in Federalist Paper No. 76. Despite some philosophical 
differences with Judge Breyer, as I have stated, that in itself is not 
sufficient reason to oppose his nomination. I shall vote to confirm.
  Mr. HATFIELD. Mr. President; I would like to take this opportunity to 
express why I will vote in favor of the nomination of Judge Stephen 
Breyer to be the next Associate Justice of the U.S. Supreme Court.
  The advice-and-consent role of the Senate is something that we do not 
take lightly because this is the only opportunity for the people of 
this Nation to express whether or not they deem a nominee qualified to 
set on the highest court in the land. After carefully scrutinizing 
every aspect of Judge Breyer's personal and professional life, the 
Judiciary Committee unanimously agreed that he is an ethical and 
extremely well qualified candidate for this position. Matters involving 
his financial investments were thoroughly investigated and determined 
by experts to represent no conflicts of interest. Throughout the 
hearings on this nomination, Judge Breyer demonstrated the 
intelligence, integrity, and fairness necessary to excel in this 
position. The Court will benefit from his intellect, from his unique 
points of view, and from the strength with which he holds those views.
  As with every nomination, I do not agree with all positions that 
Judge Breyer has taken or will take during his years as a judge. 
However, he has formed views on the economics of regulatory burdens 
that I find intriguing in light of the burdens that Western States face 
from natural resource regulation. In addition, Judge Breyer has 
demonstrated an even-handed approach to controversial areas involving 
freedom of religion, property rights, and civil rights.
  In some areas of law, including the law involving abortion, I 
disagree with Judge Breyer's opinions. He has indicated cautious 
support for current decisions regarding abortion rights, which I view 
as misguided. In addition, he stated that constitutional questions 
surrounding the death penalty are settled law, and that he has no 
personal opinion on the matter. It is disturbing to me that someone who 
will be deciding the fate of human lives has no personal opinion for or 
against State-sponsored killing. However, I have never made it a 
practice to decide the fitness of a judge to serve on the bench based 
upon one or two opinions that he either does or does not share with me. 
I am confident that Judge Breyer will keep an open mind on these issues 
and demonstrate the judicial temperament that he has shown in his 
career so far.
  The diverse background of Judge Breyer speaks very well for his 
ability to take on this challenge. He is the highly regarded chief 
judge of the First U.S. Circuit Court of Appeals, and has a reputation 
as working well with others and searching for common ground on tough 
issues. He attended Stanford and Oxford Universities, and graduated 
from Harvard Law School. In addition, Stephen Breyer has accumulated a 
variety of other legal experiences over the years including service as 
a law clerk to Supreme Court Justice Goldberg, working in the Justice 
Department's antitrust division, serving on the U.S. Sentencing 
Commission, and serving as chief counsel to the U.S. Senate Judiciary 
Committee. I am pleased to note that, as with Justice Ginsburg before 
him, this nominee has been committed to teaching and education for many 
years. Judge Breyer joined the faculty of the Harvard Law School in 
1967 and has continued to teach even after becoming a judge.
  These varied legal and educational experiences give Judge Breyer a 
depth of understanding not only of the law, but of how it relates to 
each of the three branches of government. These experiences combined 
with his respect for the Constitution and his fair-minded approach to 
issues should serve the country well as Judge Breyer takes his place on 
the Supreme Court of the United States.
  Mr. PRESSLER. Mr. President, I rise today to speak briefly on the 
nomination of Chief Judge Stephen Breyer to be Associate Justice of the 
U.S. Supreme Court. Of my colleagues, I believe I am in the unique 
position of being the only former law student of Stephen Breyer when he 
was a professor at Harvard Law School. I am pleased to support my 
former law school professor for a position on the High Court.
  Coincidentally, the class I took from him years ago dealt with Indian 
law primarily, the same issue I questioned Judge Breyer about during 
his confirmation hearings. Many of the cases we studied in that law 
class years ago retain their significance and precedence to this day.
  The class discussed the ``Cherokee Cases''--perhaps the two most 
influential decisions in all of Indian law. In Cherokee Nation v. 
Georgia, 30 U.S. (5 Pet.) 1 (1831), Chief Justice Marshall, writing for 
the Court, determined that the Cherokee tribe was a ``state,'' 
``capable of managing its own affairs and governing itself.'' Marshall 
went on to characterize the tribes, in a famous phrase, as ``domestic 
dependent nations.''
  The following year, the Court held in Worcester v. Georgia, 31 U.S. 
(6 Pet.) 515 (1832), that the laws of Georgia had no force within the 
boundaries of the Cherokee nation. At the time, this ruling virtually 
excluded the States from exercising jurisdiction over Indian affairs, 
and is said by some to have caused President Andrew Jackson to declare, 
``John Marshall has made his decision; now let him enforce it.''
  Jurisdictional problems regarding Indian lands are very much with us 
today. Indian law cases are certain to come before the Court in the 
near future. I have confidence Judge Breyer will approach these cases 
with the dedication and respect for the law which he has so ably 
demonstrated in the past.
  Mr. President, though I will vote to confirm Judge Breyer, my vote 
does not imply that I do so without reservation. Judge Breyer has been 
a Federal appeals court judge for 14 years and during that time has 
authored or joined many, many opinions. Certainly, I do not agree with 
all of his opinions and views.
  Take, for example, his 1989 ruling in New Life Baptist Church Academy 
versus Town of East Longmeadow, regarding the free exercise clause of 
the Constitution. Judge Breyer held that local school boards could 
enforce a State law that requires ``approval'' of a religious school's 
secular program. In recent weeks, I have heard from constituents 
concerned that this case indicates the nominee's beliefs that it would 
be constitutional for a State government to ban home schooling. Judge 
Breyer's ruling also raises questions about the extent of a local 
school board's ability to approve or disapprove of a private school's 
secular program and whether, when making such an approval, a local 
school board must use clearly articulated, objective standards.
  Despite this concern, however, I take comfort from Judge Breyer's 
remarks concerning this case during the confirmation hearings. He 
recognized that,

       [t]here is nothing more important to a person or to that 
     person's family than a religious principle, and there is 
     nothing more important to a family that has those principles 
     than to be able to pass those principles and beliefs on to 
     the next generation.

  I certainly share this view. Judge Breyer further stated that he 
understood the strong protections Congress intended to give to 
religious liberty under the Religious Freedom Restoration Act, passed 
by the Congress last year. These remarks give me hope that, if 
confirmed, Judge Breyer will not further erode the right of citizens to 
school their children at home or at a private school.
  Notwithstanding the reservations I have mentioned, I remain confident 
that Judge Breyer will be a fair and very able Justice of the Supreme 
Court. I wish him well.
  Mr. DODD. Mr. President, I rise to express my strong support for the 
nomination of Judge Stephen Breyer to the U.S. Supreme Court. He has 
already distinguished himself as a first-rate jurist, and I am 
confident that he will be an extraordinary Justice.
  This Nation was founded on the rule of law, and the Supreme Court of 
the United States is our highest embodiment of that principle. Those 
who we appoint to this court are therefore more than judges. They are 
guardians of a sacred idea, the idea that our Nation is one where the 
law will prevail.
  Stephen Breyer is uniquely qualified to serve as a guardian of this 
idea. He has dedicated his life to making the law work for people, to 
making the courts accessible to American citizens, and to preserving 
constitutional rights.
  Judge Breyer has worked in all three branches of Government and has 
distinguished himself in each. As an attorney with the Justice 
Department's antitrust division, he successfully argued that an 
agreement not to show property in white neighborhoods to African-
American buyers could be challenged as an antitrust violation. As chief 
counsel to the Senate Judiciary Committee, he helped forge a consensus 
among business and consumer groups to deregulate the airline industry.
  And finally as a judge, Stephen Breyer has brought a commonsense, 
reasoned approach to the cases he has handled. A survey of his major 
opinions resembles a tour through the pillars of American 
jurisprudence: the imperative of free speech, the rights of religious 
minorities, the injustice of discrimination, a balance between the 
rights of the accused and the needs of law enforcement.
  Stephen Breyer has also gone beyond the confines of his judicial 
robes and has brought his good judgment and keen intellect to other 
tasks. He was a charter member of the U.S. Sentencing Commission, which 
established fair and uniform punishment guidelines for criminals. He 
has also taught at Harvard Law School since 1967, where he has 
contributed to our scholarly understanding of the law and has inspired 
scores of future lawyers.
  Given his sterling reputation and considerable accomplishments, it is 
unsurprising that Judge Breyer has drawn such wide praise from all 
across the political spectrum. As Kenneth W. Starr, Solictor General 
under President Bush, has said,

       Judge Breyer is universally admired among his judicial 
     colleagues throughout the country as a judge of high 
     abilities and unshakable integrity. With his intellect, 
     wisdom, and energy, he will prove to be, I am confident, one 
     of the great Justices of this century.

  I share Mr. Starr's assessment, and I urge my colleagues to vote for 
this nomination.
  Mr. KEMPTHORNE. Mr. President, it seems that ever since I began my 
career as a public servant, I have been involved in the selection of 
judges. In Boise, as a result of my position as mayor, I served on the 
Fourth District State Court Magistrate Selection Panel.
  As a group, we on the selection panel were very serious in our 
decision-making process. We knew that the men and women we selected 
would be perhaps the public's only contact with the judicial system. 
The trust of the citizenry--their belief in the essential fairness of 
the judiciary, would be given the test in our selection.
  My thoughts during that selection process were that we should find 
and place on the bench the best qualified individual to fit the 
position. But, as with all things, there was sometimes disagreement as 
the meaning of the term ``best qualified.''
  By ``best qualified'' I meant that a judge should exhibit exemplary 
educational and professional qualifications. They should demonstrate a 
temperament and attitude of fairness. They should be dedicated to the 
principles of the law and they should be willing to subject themselves 
to a life of study and intellectual pursuit. On the job training is no 
place for a judge.
  We knew that if a well-qualified individual was lacking in some 
particular qualification, but was otherwise a deserving person who 
could satisfy the greater majority of the needs of the bench, that 
sufficient safeguards existed to backstop our decision. In Idaho, 
judges stand for public confirmation every 4 years. A competent and 
watchful review process ensured that judges who failed to perform could 
and would be replaced.
  Now, years later, I find myself in the position of fulfilling the 
high constitutional duty in the confirmation of Justices of the United 
States Supreme Court.
  In Federalist Paper, No. 76, Alexander Hamilton on April 1, 1788, 
stated:

       To what purpose then require the co-operation of the 
     Senate? I answer that the necessity of their concurrence 
     would have a powerful, though in general silent operation. It 
     would be an excellent check upon a spirit of favoritism in 
     the President, and would tend greatly to preventing the 
     appointment of unfit characters from State prejudice, from 
     family connection, from personal attachment, or from a view 
     to popularity. And, in addition to this, it would be an 
     efficacious source of stability in the administration.

  There are few things we will do this year more important than confirm 
lifetime appointments to the Federal bench. Any Federal judgeship is a 
position not to be taken lightly. Just as I have never endorsed a 
``litmus test'' for Federal judges, I cannot support a Federal 
judgeship, any Federal judgeship, based on political patronage. A 
Federal judgeship is a position that should not be based simply on the 
slavish adherence to political philosophy. To do so diminishes the 
bench and diminishes the nominator. To do so betrays our constitutional 
duty. In Federalist Paper, Number 78, Hamilton stated:

       For I agree, that ``there is no liberty, if the power of 
     judging be not separated from the legislative and executive 
     powers.'' And it proves, in the last place, that as liberty 
     can have nothing to fear from the judiciary alone, (it) would 
     have everything to fear from its union with either of the 
     other departments.

  The selection of a Federal judgeship cannot be a political game to be 
played by nominating legislators or a conniving executive but rather a 
deadly serious business which can determine the future direction of our 
Nation. The court and its nominees are, however, influenced by the 
political process. A careful balancing of philosophies, as determined 
by the election process, determines the direction of the court and the 
direction of our Nation.
  Now, as then, I believe that a Justice of the United States Supreme 
Court, as with any Federal judgeship, should have the highest 
educational and professional qualifications. Surely Judge Breyer has 
those qualifications. Educated at Stanford, Oxford, and Harvard, Judge 
Breyer has served as the chief counsel of the Senate Judiciary 
Committee, law clerk for Supreme Court Justice Arthur Goldberg and 
professor of law at Harvard School of Law. He currently serves as the 
chief judge, of the First District U.S. Court of Appeals, having been 
appointed by President Carter.
  However, we expect excellent qualifications in a lifetime appointment 
to any position on the Federal bench. Too many critical issues will be 
decided. Too many lives will be affected.
  A Justice of the U.S. Supreme Court must be a person of integrity and 
values. The best way to determine if a judge represents our ideal of 
judicial integrity is through their decisions. Most of the decisions of 
Judge Breyer represent an incisive legal mind and a scholarly process 
of thought. Some of his decisions, however, have raised controversy in 
my State, particularly in his decisions on religious freedom and the 
free exercise of religion. Some of my constituents are concerned about 
Judge Breyer's previous rulings on home schooling.
  In Idaho, and across the Nation, thousands of concerned families have 
rejected the public educational system because they do not believe it 
represents the values they cherish. The values and the reasons for that 
belief are varied across the country. In some parts of America, 
alternative schooling is preferred because of cultural or ethnocentric 
values which parents may rightfully believe are not sufficiently 
addressed by a public school system. In Idaho, the overwhelming 
majority of alternative home schooling is done by parents who believe 
that the exclusively secular education offered by the public school 
system does not provide the sound religious values they hold above 
everything else. Home schooling is not easy. It takes a commitment to 
education and a commitment to those values which the parent feels are 
not shared by our educational system. These parents have the right to 
provide an alternative education to their children.
  In the confirmation hearing of Judge Breyer, Senator Simpson 
questioned him on his views and on whether Judge Breyer believes it is 
constitutional for States to mandate testing to determine the adequacy 
of secular education at religious schools. Judge Breyer answered that 
the question was dependent on the particular State law and whether the 
State system was the least intrusive into the rights of the individual. 
Asked straight out if he had a bias against home schooling or religious 
schooling he answered, ``absolutely not.'' In the light of his 
qualifications and his experience I am willing to take Judge Breyer at 
his word.
  Senator Lugar has criticized Breyer for his involvement in 1985 with 
a Lloyd's underwriting syndicate known as Merret 418. And I want to 
thank my good friend and colleague Senator Lugar for bringing this 
issue to the Senate. The Lloyd's syndicate insured a wide range of 
risks but its main crisis involved asbestos and pollution remediation. 
It is fair to ask whether this involvement raises a question of 
conflict of interest over Judge Breyer's participation in environmental 
pollution cases.
  Furthermore, because of the rules of Lloyd's investment depending on 
the results of the losses sustained, Judge Breyer may be unable to 
leave the syndicate. Currently, Breyer has sustained losses of some 
$30,000. The worst case scenario differs depending on your source of 
information. A representative from Lloyds has said that Judge Breyer 
could lose a maximum of $187,200, with his own insurance covering all 
of that. Others, also familiar with the Lloyds process, say that Judge 
Breyer would be harassed by this improvident investment for years to 
come. They question his judgment and his judicial independence in light 
of this serious entanglement. They say that he may have to recuse 
himself from so many decisions that his effectiveness will be 
compromised for years to come.
  But, with all respect to my friend and colleague Senator Lugar, I 
cannot disqualify a person to sit on the Federal bench because of a 
disputed and speculative impact of a family investment. If Judge Breyer 
is ineffective because of his entanglements, he should retire from the 
bench.
  On balance Judge Breyer is a highly qualified and experienced member 
of the bench who will make the court marginally more balanced based on 
the political and judicial philosophy of the Justice he is replacing. 
Because of his qualifications and his judicial history I will support 
Judge Breyer to be a Justice of the U.S. Supreme Court.
  Mr. DOLE. Mr. President, I would like to say a few words in support 
of the nomination of Judge Stephen Breyer.
  In the late 1970's, I had the opportunity to work closely with Judge 
Breyer, when I was a member of the Senate Judiciary Committee and Judge 
Breyer--then just Stephen Breyer--was the committee's chief counsel. 
Although a member of Senator Kennedy's staff, Stephen Breyer 
nonetheless made a big impression on those of us sitting on the 
Republican side of the committee room. Stephen Breyer was someone whose 
word was good. He was always fair-minded, sharing information and 
giving us the benefit of his counsel.
  After three days of confirmation hearings, the American people now 
know what we knew back then--that Judge Breyer's intellect is 
considerable, his educational credentials impeccable, his knowledge of 
the law expansive. Judge Breyer also possesses a skill that should 
serve him well on the Court--an ability to communicate his knowledge of 
the law in clear, unambiguous prose, making it accessible to the 
ordinary American citizen. He is a recognized expert in the area of 
administrative law, antitrust, and economic regulation. He was a 
charter member of the U.S. Sentencing Commission. He is a proud father 
and a loving husband.
  Of course, I do not agree with every decision ever rendered by Judge 
Breyer. For example, in the New Life Church Academy case, it appears 
that Judge Breyer took too narrow a view of the free exercise clause of 
the first amendment and, as a result, supported a position that undly 
burdens private religious schools.
  It is also clear that Judge Breyer would not have been nominated if a 
Republican were sitting in the Oval Office. But, then again, it was 
President Clinton--not President Bush--who won the election in 1992.
  Obviously, Republicans should not give President Clinton a green 
light on every judicial nomination that comes down the pike, but that 
does not mean we should flash a red light on every nomination either. 
Republicans will continue to examine closely the record of every 
nominee, and if the record raises more questions than answers, then we 
will speak out, as we did with the nomination of Judge Rosemary 
Barkett.

  The role of a judge is to follow precedent and apply the law 
neutrally, not rewrite the law by legislating from the bench. What 
matters is what the law says, not what a judge thinks the law ought to 
say. Any nominee who does not understand this basic principle of 
judicial restraint should not be confirmed.
  I know it is fashionable in some circles to blame Republicans for 
something called gridlock. But with the nomination of Justice Ginsburg, 
and now with the Breyer nomination, Republicans have given the 
President the benefit of the doubt. In fact, I think it is fair to say 
we have been more cooperative on these two nominations than Democrats 
ever were during the Reagan and Bush administrations. Just ask Judge 
Bork and Justice Thomas.
  Finally, Mr. President, before Judge Breyer was officially nominated, 
there was a lot of talk about how important it was to put someone like 
former Chief Justice Earl Warren on the Court.
  This point of view is disturbing, to say the least, for as violent 
crime intrudes on every community in America, the last thing we need is 
another activist Warren Court that expands the rights of criminal 
defendants and hamstrings law enforcement.
  Unfortunately, too many Federal judges have too often viewed law-and-
order as just that--a slogan. Arizona Gov. Fife Symington, for example, 
has tried to rid his State's prison system of pornography, only to be 
overruled by a district court judge. Federal judges have ruled that 
State prisoners suffer ``cruel and unusual punishment'' if they do not 
have access to televisions and basketball courts. And Federal prison 
cap orders have led to the early release of violent, vicious criminals.
  According to one study, a staggering three-fourths of the State 
prison systems and one-third of the 500 largest local jails are under 
some form of Federal court supervision.
  So, Mr. President, a judicial nomination is serious business. The 
decisions of Federal judges can have important, real-life consequences. 
And when you are talking about filling a vacancy on the highest court 
in the land, the stakes are even higher.
  Mr. President, I am proud to support the nomination of Stephen 
Breyer. President Clinton has made a fine choice, and I am pleased to 
join those who wish him well as the newest Associate Justice of the 
Supreme Court.
  Mr. MOYNIHAN. Mr. President, Judge Stephen G. Breyer, the Chief Judge 
of the U.S. Court of Appeals for the first circuit, is the second 
superb Supreme Court nominee presented to the Senate by President 
Clinton, Ruth Bader Ginsburg having been the first. I was an early 
advocate of Judge Ginsburg's nomination, and I support Judge Breyer's 
nomination with equal enthusiasm.
  My acquaintance with Stephen Breyer began three decades ago when I 
undertook to edit the collected public papers of Justice Arthur 
Goldberg. I had been Assistant Secretary of Labor in the Kennedy 
administration during Arthur Goldberg's tenure as Secretary, and 
Stephen Breyer was a law clerk to Justice Goldberg on the Supreme 
Court. Stephen Breyer was of great help to me in the compilation of the 
Justice's papers, which were published in 1964 under the title ``The 
Defenses of Freedom: The Public Papers of Arthur Goldberg.''
  More recently, Judge Breyer and I have found we have another common 
interest--in the subject of risk regulation. I have long advocated a 
more sensible Government approach to the assessment of risk; this is 
described in S. 110, the Environmental Risk Assessment Act. He has 
written a book on the subject entitled ``Breaking the Vicious Cycle 
Toward Effective Risk Regulation.'' The book, based on the Oliver 
Wendell Holmes lectures delivered by Judge Breyer at Harvard 
University, makes the subject easily accessible. In it, he proposes the 
creation of a Federal agency to help the President determine how best 
to allocate resources and to help determine the best way to reduce 
risks. This would be another bureaucracy, but a decentralized agency 
whose multidisciplinary employees would serve for 2- to 3-year periods 
in offices within the executive, judicial, and legislative branches, 
dealing with risk assessment and management.
  In addition to his broad experience as a Federal judge on the first 
circuit, Stephen Breyer's other professional experience has prepared 
him well to sit on the Supreme Court. He has served as a professor at 
Harvard Law School and at Harvard's Kennedy School of Government; as 
Chief Counsel to the Senate Committee on the Judiciary; as Assistant 
Special Prosecutor for the Watergate Special Prosecution Force; and as 
Special Assistant to the Assistant Attorney General here in the U.S. 
Department of Justice. He is a lawyer who has examined the law from 
many perspectives.

  These experiences, no doubt, have contributed to Judge Breyer's deep 
respect for and knowledge of the legislative process. Indeed, he is a 
leading expert--and formidable advocate--on judicial use of legislative 
history. His approach to this subject was described by Prof. Robert A. 
Katzmann, who is the Walsh Professor of Government and Professor of Law 
at Georgetown University, in a recent article which I will place in the 
Record.
  Mr. President, Stephen Breyer will be an outstanding Justice of the 
Supreme Court, and I urge my colleagues to support his nomination when 
the Senate votes later today. I ask unanimous consent that the article 
about Judge Breyer by Prof. Robert Katzmann be printed in the Record 
immediately following my remarks.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                   [From the Roll Call, May 30, 1994]

                             Guest Observer

                        (By Robert A. Katzmann)


        Justice Breyer: A Rival for Scalia On the Hill's Intent

       If confirmed as the 108th Justice, Stephen Breyer will 
     bring to the Supreme Court an intimate knowledge of, and 
     respect for, the legislative process. As former chief counsel 
     of the Judiciary Committee, he knows how laws are made and he 
     knows the people who make them.
       ``My experience running the staff of the Senate Judiciary 
     Committee,'' Breyer once observed, ``led me to conclude that 
     elected officials seriously consider public interest argument 
     and act upon them.''
       As a jurist who is now the chief judge of the First 
     Circuit, he has been a staunch defender of judicial use of 
     appropriate legislative history--for example, committee 
     reports and floor debates--in the interpretation of unclear 
     statutes.
       At a time when the venerable practice of looking to 
     legislative history has come under siege, most notably from 
     Justice Antonin Scalia, Breyer's appointment promises to add 
     an effective voice to the debate.
       Those who would restrict or even totally abandon the use of 
     legislative history and confine judges merely to the 
     ambiguous words of a statute itself offer a variety of 
     challenges to which Judge Breyer has responded.
       Critics argue that legislative history is often conflicting 
     and thus of no use. To that view, Breyer observes that the 
     federal appeals courts are often confronted with unclear 
     statutory provisions, which do not involve major political 
     controversy, and where legislative history is often clear 
     enough to clarify statutory meaning.
       Legislative history skeptics make the constitutional 
     argument that the law consists only of the words of a bill 
     passed by both houses of Congress and signed by the president 
     or subject to a veto override--not of floor speeches or 
     committee reports.
       Breyer answers that no one claims that legislative history 
     is any strong sense ``the law,'' but rather that it is useful 
     in ascertaining the meaning of the words in the statute.
       Opponents of legislative history also assert that the 
     Constitution vests ``legislative'' power in elected Members 
     of Congress. For Scalia, using legislative history vests 
     illegitimate authority in unelected individuals--
     Congressional staffers or lobbyist--who write the floor 
     statements, testimony, and reports. Members of Congress, the 
     argument continues, may not even read these materials.
       Judge Breyer and Justice Scalia have taken each other on 
     publicly about the workings of the legislative process, 
     disagreeing on the matter at a colloquium of the Governance 
     Institute and the Brookings Institution.
       To Breyer, legislators make the significant decisions and 
     take responsibility for the outcome.
       Legislators cannot read every word of every report or 
     proposed statute. But in the process of interaction with 
     relevant interest groups, executive branch departments, and 
     other institutions, these words are carefully reviewed by 
     those whom they will likely affect and by the legislator's 
     own employees. The staff act at the direction of their 
     legislators, who, in the end, like the managers of other 
     large institutions, are accountable for the decisions made.
       The problem with legislative history, Breyer maintains, is 
     with its abuse, not it use. Legislative history, he argues, 
     aids appellate courts to make the law itself more coherent, 
     workable, and fair in at least five different circumstances:
       (1) Avoiding an Absurd Result. Breyer believes that a court 
     should look to legislative history where the literal language 
     of a statute would produce an absurd result. On this point, 
     he and Scalia agree.
       (2) Preventing a Court Decision From Relying on a Drafting 
     Mistake. In some situations, the language of statute might 
     seem rather clear and the result is not apparently absurd. 
     But resorting to legislative history could demonstrate that 
     the result is in error because of a drafting mistake, one 
     that a court should correct.
       (3) Specialized Meanings. Another relatively 
     noncontroversial use of legislative history that Breyer 
     support is when it gives meaning to a specialized term or 
     phrase in a statute, as understood by the community of 
     experts or other involved in the passage of a statute. Here, 
     too, Justice Scalia would apparently concur with Judge 
     Breyer.
       (4) Identifying a ``Reasonable Purpose.'' At times, Breyer 
     argues, legislative history is necessary to understand the 
     purpose a particular statutory word or phrase has within the 
     broader context of a statutory scheme.
       For instance, in a First Circuit case, the court had to 
     determine whether the word ``persons'' in a welfare statute 
     included a child, the child's mother, a stepfather, or all of 
     them. Without examining legislative history, the court might 
     not have appreciated that the same word ``persons,'' found 
     three times in the same sentence, referred in each instance 
     to a different group.
       (5) Selecting Among Reasonable Interpretations of a 
     Politically Controversial Statute. A court might also use 
     legislative history when a politically controversial statute, 
     passed amidst conflicting signals, is silent or unclear about 
     a contested issue. Breyer contends that for reasons of 
     ``time, the complexity and length of the overall bill, and 
     the difficulty of foreseeing future circumstances,'' it might 
     have been easier to case language in a floor statement or 
     report than in the statute itself.
       As chief judge of the First Circuit, Stephen Breyer has 
     supported initiatives to promote communications between the 
     judiciary and Congress.
       To that end, his circuit is participating in a Government 
     Institute project in which judicial opinions identifying 
     perceived noncontroversial problems in statutes are routed to 
     Congress for its information.
       This effort, launched in 1992 with the bipartisan support 
     of the House and Senate leadership, is designed to stimulate 
     shared understanding between the branches about the drafting, 
     interpretation, and orderly revision of statutes.
       As the product of both the courts and Congress, Justice 
     Breyer will most assuredly be a bridge between each, in ways 
     that promote the more effective workings of government.
  Mr. McCONNELL. Mr. President, I am pleased to support the 
confirmation of Judge Stephen Breyer for Associate Justice of the 
United States Supreme Court. Judge Breyer has demonstrated he has the 
necessary qualifications to become the 108th Justice.
  He will come to his new position with experience in all three 
branches of government and with a distinguished academic background. He 
has a thorough command of the law, particularly for those areas which 
increasingly occupy the Court's docket--administrative and regulatory 
issues.
  Judge Breyer appreciates the framework of American democracy--that 
each of the three branches has separate and distinct functions. And, 
most importantly he knows it is the responsibility of the Congress to 
make the laws. In his 14 years as an appellate judge, he has shown 
appropriate deference to the legislative branch. And he has 
demonstrated restraint as a judge, avoiding the tendency of so many 
judges to invent law to achieve a particular result.
  During his confirmation hearings, he reviewed a number of issues. He 
finds the death penalty to be constitutional in certain circumstances--
``settled law'' was what he said. On the first amendment's protection 
of religion, he said the separation of church and state was not 
absolute, and noted that there were ``vast areas'' in which the 
government assisted religion. In discussions about the use of 
statistics in death penalty cases, Judge Breyer noted that the hallmark 
of our system is ``individual justice'' based on the facts and 
circumstances of each case.
  And, on those issues he felt he could not discuss in detail, Judge 
Breyer stated clearly that he would have an open mind; he will study 
the arguments on both sides of an issue, and he will not prejudge any 
case. This is in stark contrast to Justices Marshall, Brennan, and 
lately Blackmun, who announced their position on a key issue--the death 
penalty--without regard to the particulars of a case.
  Mr. President, Judge Breyer possesses a keen intellect, the necessary 
integrity, as well as an appropriate judicial temperament to serve on 
the Supreme Court. In addition, his record, including his testimony at 
his confirmation hearing, demonstrates that he is a practitioner of 
judicial restraint; he will be disciplined and he will defer to 
Congress when it comes to setting out new rights or making new law.
  I will cast my vote in favor of Judge Breyer's confirmation.
  Mr. KOHL. Mr. President, I rise to support the nomination of Judge 
Stephen Breyer to the U.S. Supreme Court, and to speak briefly--and 
somewhat 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, 
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 the Court.
  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. 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 impropriety. 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 he 
would do so.
  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 sidestepped 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 v. 
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 only 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.
  Mr. SHELBY. Mr. President, I rise to express my support for the 
nomination of Judge Stephen Breyer to the U.S. Supreme Court. I am 
pleased to offer my support because I believe that he is exceptionally 
well-qualified to serve as a Supreme Court Justice.
  Judge Breyer is a native Californian who was born and raised in San 
Francisco. He was educated in the public school system and received his 
undergraduate degree from Stanford University. He also attended Oxford 
University on a Marshal Scholarship. In addition, Judge Breyer had a 
distinguished academic career at Harvard Law School where he was a 
member of the Harvard Law Review. Subsequently, he spent 8 years in the 
Army Reserves.
  His entire adult life has been spent as a public servant working in 
all three branches of the Government. He began his career after law 
school as a law clerk to Supreme Court Justice Arthur Goldberg where he 
received firsthand experience in the Federal judicial process. He also 
served as a Special Assistant to the Assistant Attorney General in the 
Antitrust Division of the U.S. Department of Justice.
  As Chief Counsel to the Senate Judiciary Committee, Judge Breyer 
worked well with Members of both parties and acquired a reputation for 
fairness. For the past 14 years, he has served as a judge on the U.S. 
Court of Appeals for the First Circuit. He is recognized throughout the 
judicial community as one of this country's leading jurists. He has 
rendered clear and concise decisions which have protected the 
individual and civil rights of American citizens. In addition, he has 
demonstrated exceptional skill in building bridges in the pursuit of 
justice and this ability will serve the court and the Nation well.
  Judge Breyer also has dedicated many years of service to teaching 
young legal scholars at the Harvard Law School. He has shared with his 
students through his instruction, as well as his writings, his 
expertise in criminal law, antitrust and economic regulation, civil 
rights, constitutional liberties, and environmental law. In addition, 
he has emphasized to his students that the judicial system must be 
accessible to everyone.
  As a husband and father of three children, Judge Breyer is a well-
rounded individual with broad experiences. He has a keen appreciation 
for family values and the challenges that families and young people in 
America face today. He is an honest, responsible, and intelligent 
jurist who possesses the credentials and wisdom needed for the Supreme 
Court. It is becoming increasingly difficult to find individuals as 
talented as Judge Breyer who are willing to dedicate their lives to 
public service. I am very happy that Judge Breyer is involved in this 
process, and I want to express again my strong support for his 
nomination.
  Mrs. FEINSTEIN. Mr. President, frankly, while I expected to be 
impressed with Judge Breyer before the hearings, I must admit that I 
was not fully prepared for what I saw and heard once they began.
  In his answers to question after multipart question fired at him on 
complex issues, Judge Breyer demonstrated both a deep knowledge of his 
field--and a comfort with that knowledge--unparalleled in my 
experience.
  I am confident, however, that he will bring to the High Court not 
just scholastic and intellectual ability, but--more importantly--a rare 
ability to reveal the simple and elemental truth behind complex legal 
theories. He will do what he said in the Rose Garden, Mr. President. 
Make the law work for, and intelligible to, ordinary people.
  He also satisfied this Senator that he is a man of great integrity, 
judgment and good, plain common sense. I believe him to be an 
outstanding appointment at a critical time in the Nation's history. As 
the Supreme Court wrestles with the issues that may well define our 
age: private property versus public need; access to information versus 
the creation of intellectual property; and crime control versus 
individual rights.
  Judge Breyer will play a major role in shaping the decisions of the 
Court, perhaps helping articulate a middle ground that will guide us 
all.
  For myself, Mr. President, I will be particularly interested to see 
how Judge Breyer and the Court balance what I called the rights of the 
few versus the rights of the many, particularly with respect to 
criminal justice matters. Perhaps no single issue will better test the 
Court's ability to strike a delicate balance than deciding what the 
habeas corpus appeal rights of a convicted killer should be.
  As Americans increasingly come to feel that violence is plaguing our 
Nation, and the need to put laws in place to offer society the 
protection that it deserves, how will we--as a nation of laws--also 
protect the rights of the individual.
  I, for one, am more than comfortable putting Justice's scales in 
Judge Breyer's stunningly skilled hands, Mr. President. I urge my 
colleagues to vote to confirm him this afternoon.
  Mr. AKAKA. Mr. President, I rise in support of Judge Stephen G. 
Breyer, President Clinton's nominee to be Associate Justice of the 
Supreme Court of the United States.
  The Constitution authorizes the Senate to give advice and consent to 
such nominations made by the President. I assume this responsibility 
with the utmost solemnity and diligence. I am pleased the Senate 
Judiciary Committee gave its overwhelming approval to the nomination 
after thoroughly reviewing Judge Breyer's suitability to serve on the 
Supreme Court.
  I have had the privilege now to vote on four Supreme Court 
nominations, including three sitting Justices. I applied the same 
criteria to evaluate Judge Breyer as I did in examining the 
qualifications of his predecessors, Justices Souter, Thomas, and 
Ginsburg.
  Throughout Judge Breyer's appearances before the Senate Judiciary 
Committee, I found him to be an engaging and knowledgeable jurist. He 
possesses a keen sense of humor, a sharp mind and an obvious enjoyment 
of his family, work, and community. I was most impressed with his 
belief that a primary precept of the Constitution is the preservation 
of individual dignity. During Judge Breyer's tenure on the U.S. Court 
of Appeals for the First Circuit, he has defended constitutional 
liberties such as free speech, religious freedom, and other privacy 
issues.
  However, it is in the arena of antitrust and economic regulation 
where Judge Breyer is most widely recognized as one of the Nation's 
leading authorities. He is also a leader in interpreting Federal 
statutes and regulations that increasingly occupy the Supreme Court's 
attention. I believe his approach to statutory interpretation is in 
part shaped by his respect and understanding for the legislative 
process.
  Judge Breyer enjoys an excellent reputation, particularly among his 
colleagues on the First Circuit Court. He also received the highest 
rating from the American Bar Association and was highly praised by 
those testifying on behalf of his judicial work during the recent 
confirmation hearings.
  Mr. President, as I stated before, I am pleased to vote in favor of 
this nomination.
  Mr. MURKOWSKI. Mr. President, as the Senate conducts its 
constitutional duty of advising the President on the nomination of 
Judge Stephen Breyer to the Supreme Court, I am reminded of the solemn 
significance of the Senate's duty as a separate branch of Government to 
advise the President, the executive, on the nominations of individuals 
to serve in posts that are among the highest official posts in the 
land. Of all nominations this body considers, nominations to the 
Supreme Court are among the most critical because of the tremendous 
responsibility we vest in our Supreme Court, and because the tenure of 
the members of the highest judicial court in the country is limited 
only by an individual justice's inclination or mortality. This is the 
first and last say we will ever have on the suitability to Judge Breyer 
to sit on the Supreme Court.
  Judge Breyer has, by most accounts, provided reasoned, intelligent 
answers to the Senate Judiciary Committee about legal issues and about 
his many rulings during 14 years as a Judge on the U.S. Court of 
Appeals for the First Circuit. He received the unanimous approval of 
the Senate Committee on the Judiciary. That is no small feat and, in 
all likelihood, will provide enough momentum to secure the consent of 
the Senate to his nomination to the Supreme Court.
  In fact, one of the only serious concerns raised in relation to the 
Breyer nomination comes, not from the Judiciary Committee, but from the 
senior Senator from Indiana who provides a measured, thoughtful 
analysis of Judge Breyer's involvement in a Lloyd's of London insurance 
underwriting investment. An investment that is, as I understand it, the 
ultimate roll of the dice, the most important spin of the roulette 
wheel a person could take with his or her assets. One bets one's entire 
worth on underwriting insurance claims that other people enter into 
without consulting you. If they guess wrong the investor could lose 
everything. According to the Washington Post at least four investors in 
similar schemes have lost all their wealth and ended their lives in 
suicide. Now we are told that one of Judge Breyer's underwriting 
syndicate's faces mounting losses with no end in sight.
  As a banker for 25 years, I am extremely troubled by the facts that 
the Senator from Indiana raises. I often encountered circumstances 
where I counseled customers, even very wealthy customers, against the 
advisability of taking on debt or the financial liability of another. 
Sometimes, very smart people made bad decisions and, literally, had to 
pay for those mistakes. But, Mr. President, in 25 years of banking, I 
never saw someone enter into an agreement in which their lability was 
unlimited. One's judgment is put in serious doubt when he voluntarily 
enters into an agreement like this.
  For these reasons, I cannot support Judge Breyer's nomination to a 
position on the Supreme Court. His Lloyd's of London investment 
undermines my confidence in his judgment and forces me to oppose 
consenting to his nomination to one of the most critical, most powerful 
positions in the Nation. I am also concerned about the number of cases 
that Judge Breyer could not participate in because of the wide ranging 
nature of his investments which the Senator from Indiana has already 
discussed.
  Mr. SMITH. Mr. President, I rise in opposition to the confirmation of 
President Clinton's nomination of Judge Stephen G. Breyer to be an 
Associate Justice of the Supreme Court of the United States.
  Mr. President, if Judge Breyer's nomination to the Court is confirmed 
by the Senate, he will serve for decades after President Clinton leaves 
office. In making my decision on how I will vote with respect to his 
confirmation, I had to keep in mind that every time that Judge Breyer 
votes on the Supreme Court, I will be reminded of my vote in the Senate 
on his confirmation.
  I have carefully reviewed Judge Breyer's background, decisions, and 
testimony before the Senate Judiciary Committee. As a result, I have 
concluded that I cannot, in good conscience, vote to confirm a nominee 
whose judicial record and confirmation hearing testimony indicates that 
he will move the Supreme Court away from the conservative decisions of 
Chief Justice Rehnquist and Associate Justices Scalia and Thomas.
  In addition to my concerns about Judge Breyer's judicial philosophy, 
I agree with Senator Lugar's criticisms about the nominee's 
controversial Lloyds of London investments. I believe that Lloyds' 
investments demonstrate highly questionable judgment. Moreover, they 
may require Judge Breyer to recuse himself from numerous significant 
cases before the Supreme Court in the years and decades ahead.
  Judge Breyer's testimony before the Judiciary Committee places him on 
the liberal side of the constitutional debate regarding the separation 
of church and state. I believe that he is likely to vote to uphold the 
Supreme Court's precedents banning prayer in the public schools and 
even at public school graduation ceremonies.
  Mr. President, the Founders wanted the Constitution to guarantee that 
the United States would not have an official, national religion like 
the Church of England. I agree. But Judge Breyer's philosophy takes 
that worthy concept to an extreme.
  As I studied Judge Breyer's judicial record, I was particularly 
disturbed that he joined a 1990 decision of the First Circuit Court of 
Appeals holding that the Reagan and Bush administrations' regulation 
banning the use of Federal funds for abortion counseling is 
unconstitutional.
  Regardless of one's beliefs about whether elective abortions should 
be legal, the American people do not want to pay for abortions with 
their tax dollars. Judge Breyer's view that the Constitution requires 
that the American people pay for abortion counseling in federally 
funded clinics is extreme and represents an improper reading of the 
Constitution.
  Mr. President, I have reluctantly concluded that President Clinton's 
nomination of Judge Breyer represents the second building block in his 
effort to reconstruct the liberal Warren Court. I will vote against his 
confirmation to the Supreme Court.
  Mr. GLENN. Mr. President, one of the most significant 
responsibilities of a President is the appointment of justices to the 
Supreme Court. The decisions of Supreme Court justices affect all 
Americans. They are on the front lines of battles over the most 
controversial issues of the day. For the American people to have 
respect for the law, it is imperative that Americans have confidence in 
the abilities of the justices that serve on the Court.
  That is why I take the advise-and-consent clause of the Constitution 
so seriously. And that is why I am going to vote in support of the 
nomination of Judge Stephen Breyer to the Supreme Court of the United 
States.
  In these days of rabid partisan bickering, President Clinton wisely 
nominated an individual who is not an idealogue. Rather, Judge Breyer 
has a reputation as a thoughtful jurist who carefully examines all 
sides of an issue. He is a consensus builder who breaks judicial 
gridlock by searching for middle ground.
  Judge Breyer has devoted his life to public service. He has served 
with distinction in all three branches of government. Judge Breyer was 
appointed to the U.S. Court of Appeals for the First Circuit in 1980, 
where he currently serves as chief judge. Prior to his appointment to 
the Federal bench, Judge Breyer served as special counsel and later as 
chief counsel to the Senate Judiciary Committee. And in the executive 
branch, Judge Breyer was a senior official in Antitrust Division of the 
Justice Department.
  This will not be Judge Breyer's first experience at the Supreme 
Court. Following law school, Judge Breyer served as law clerk to 
Supreme Court Justice Arthur Goldberg. And Judge Breyer's commitment to 
legal education did not end after law school. He joined the faculty of 
Harvard Law School in 1967 and has continued teaching following his 
appointment to the Federal bench.
  Judge Breyer is also well known for his work as a charter member of 
the U.S. Sentencing Commission and as a special prosecutor in the 
Watergate investigation.
  Academics, labor officials, business people, environmentalists, 
conservatives and liberals alike have praised Judge Breyer's record and 
abilities. Harvard Law Professor Charles Ogletree calls Judge Breyer 
the ``consummate reasonable person'' who will ``bring balance, 
intellectual rigor, and humility in his role as a Supreme Court 
justice.'' AFL-CIO President Lane Kirkland says that Judge Breyer has 
demonstrated a ``keen appreciation of the claims of working men and 
women for dignity in their work and for economic fairness.'' And 
Kenneth Starr, Solicitor General under President Bush, predicts 
that Judge Breyer will prove to be ``one of the great Justices of this 
Century.''

  Judge Breyer's opinions demonstrate a real commitment to make courts 
more accessible to those with limited means. But Judge Breyer is 
concerned no only with accessibility, but also with ensuring that the 
American people can understand the cases before the courts. In an age 
when it seems you need to hire a lawyer to understand your own phone 
bill, Judge Breyer writes in a clear manner that can be widely 
understood by the American people.
  Judge Breyer's investment in Lloyd's of London has been a subject of 
some concern. It should be noted that Judge Breyer publicly disclosed 
his Lloyd's investment each year so that parties could decide whether 
or not any they felt that any conflict existed. And he recused himself 
from cases involving Lloyd's. The American Bar Association has 
investigated Judge Breyer's background and concluded that he has an 
excellent reputation for integrity and character. I am satisfied with 
the conclusions of the ABA on this count.
  I have also heard from Ohioans regarding Judge Breyer's holding in 
New Life Baptist Church Academy, a case involving the rights of parents 
to teach their children at home. During the Judiciary Committee's 
hearing on Judge Breyer's nomination, Judge Breyer was questioned about 
this case and his views on home schooling. Judge Breyer assured the 
committee that he has no bias against home schooling or religious 
education. Noting that there is nothing more important to a person than 
religious principles, he said that parents should have the right to 
pass religion onto their children without undue State interference. I 
think Judge Breyer has adequately explained his position on this issue.
  Mr. President, in conclusion I want to again express my support for 
Judge Breyer's nomination. I don't agree with Judge Breyer on every 
issue. But what is important is that Judge Breyer approaches every 
issue objectively and he rules impartially. He looks at the facts and 
decides accordingly. Everyone agrees that Judge Breyer has a brilliant 
legal mind. I believe we should give the American people the benefits 
of Judge Breyer's legal mind and confirm him for a seat Supreme Court.
  Mr. FEINGOLD. Mr. President, I cast my vote in favor of President 
Clinton's nominee for the U.S. Supreme Court, Judge Stephen Breyer, 
because I believe that he has the intellect, judicial temperament and 
commitment to constitutional principles that are the fundamental 
requirements for a Supreme Court nominee.
  I do want to take a moment, however, to address the issues that were 
raised by the Senator from Indiana [Mr. Lugar], regarding the issue of 
Judge Breyer's investment in Lloyd's, the London insurance company. The 
Senator from Indiana has made the argument that this investment 
demonstrated poor judgment on Judge Breyer's part, to expose himself to 
extensive personal financial liability and that he has a serious 
financial entanglement with the Lloyd's syndicate that will continue 
for years and might even force him into bankruptcy at some point.
  The Senate Judiciary Committee investigated all aspects of this 
complex issue and concluded that there was no reasonable basis to 
question Judge Breyer's integrity or qualifications and there was no 
factual basis for assertions that Judge Breyer is likely to suffer 
massive losses from the investment or that the investment reflected a 
lack of prudence or poor judgment.
  According to the materials prepared in response to the allegations 
regarding this investment, many of the assertions do not appear to be 
factually correct. First, the record demonstrates that at the time 
Judge Breyer made these investments, they were universally considered a 
safe and prudent investment based upon Lloyd's historical earnings 
record. Throughout its 300-year history, Lloyd's had returned 
substantial profits to its members and, prior to 1989, had not suffered 
an overall market loss since 1965, when Hurricane Betsy caused 
extensive property damage to the Eastern United States.
  Second, based upon these materials, the assertion that Judge Breyer 
is exposed to unlimited liability for catastrophic losses does not 
appear to be valid. Judge Breyer purchased a personal stop-loss 
insurance to cover all loss insurance to cover all losses up to 
$225,000. In addition, I have been advised that he has approximately 
$220,000 in retained earnings held by Lloyds and that according to the 
underwriter's current projections, Judge Breyer's total liability will 
be approximately $44,000. Even the worst case losses of $168,000 to 
$187,000 projected by one independent authority on the syndicate, would 
be well within Judge Breyer's insurance coverage. The losses would have 
to reach double even the most pessimistic current projects before Judge 
Breyer incurred any net additional personal loss whatever. I have also 
been advised that investor's losses, or profits, are directly 
proportional to the size of their contributions and his investment in 
the syndicate in question would render him responsible for only 1/5600 
of the total losses. Thus, before Judge Breyer would suffer any loss, 
the total liability of the syndicate must exceed $2.5 billion, which is 
vastly beyond even the largest estimates. The total losses for the 
hundreds of Lloyds syndicates in 1990--its worst year--was $5.5 
billion. Finally, contrary to the assertions that Judge Breyer can 
``never withdraw,'' I have been advised that Lloyd's General Counsel 
has indicated that an entity known as Newco is being formed to assume 
the remaining liabilities of remaining syndicates such as Judge 
Breyer's. The establishment of this new entity would terminate all of 
Judge Breyer's remaining exposure.

  Mr. President, based upon the information I have received, I do not 
believe that this issue should be the basis for opposing Judge Breyer's 
nomination. I do, however, believe that these kinds of issues should be 
thoroughly examined, and I think that the Senator from Indiana has done 
a service in exploring this issue. On balance, however, I believe that 
satisfactory answers have been provided to the concerns which have been 
raised.
  Mr. ROCKEFELLER. Mr. President, I am proud to have this chance to 
cast my vote in support of confirming Judge Stephen G. Breyer as an 
Associate Justice of the U.S. Supreme Court. Judge Breyer is an 
impressive individual, not only for his obvious intellectual acumen and 
professional success, but also for his long record of dedication to 
public service. Judge Breyer has earned a wide array of support, 
reflected in the views of the labor community, the business community, 
environmentalists, academics, and the American Bar Association.
  The Judiciary Committee performed an examination of his ethical 
history which revealed some questions, but produced a profile of a 
legal thinker and professional fully qualified for this tremendously 
important position.
  His history of judicial decision making reveals a man who weighs 
heavily the effect of the law on human lives. He does not adhere to any 
one strict legal ideology but approaches the law with a desire to shape 
the law to fit human needs. From the earliest age, he was taught that 
one learns more from people than books, and he has applied this lesson 
not only to his professional career but also to his family life, where 
he has been an exemplary husband and father, and in his community 
involvement.
  Mr. President, Judge Breyer is a strong candidate for the Supreme 
Court because of his wisdom, intelligence, and integrity. He will bring 
to the court a commitment to making the law a positive force for 
achieving justice and improving the lives of human beings. No calling 
is higher than that of justice, and I am confident that Judge Breyer 
will rise to that responsibility.
  Mr. WALLOP. Mr. President, I support the nomination of Judge 
Stephen Breyer to serve as Associate Justice of the U.S. Supreme Court. 
I believe that the President has the right to appoint the man of his 
choosing and while Judge Breyer may not be the jurist I personally 
would pick for this position, I respect that right of the President.
  Judge Breyer has shown himself to be a man of keen intellect. He was 
a distinguished academic and has had the experience of serving in both 
the Executive and Legislative branches of government. In addition, he 
has served with distinction on the U.S. Court of Appeals for the First 
Circuit. However, in spite of his fine qualities and many achievements, 
my support is not unqualified. I have serious reservations with regard 
to statements made by Judge Breyer in recent opinions as well as, his 
judgment based on evidence which came to light during his confirmation 
hearings.
  First of all, Judge Breyer's investment with Lloyd's of London 
Syndicates raises several questions about his good judgment. Not only 
has he exposed himself to far reaching potential liabilities, but he 
has opened himself up to questions about conflicts of interest on prior 
cases on which he sat. More importantly, he now must recuse himself on 
some of the most complex and important issues that this Court will hear 
dealing with insurance and the environment. This leads me to question 
his prudence and his judgment.
  I would also hope that Judge Breyer develops an increased awareness 
of and sensitivity to the rights of private property owners. Although 
he has not written about the takings clause of the fifth amendment, he 
was questioned about his approach to that issue during Judiciary 
Committee hearings. I will not go into depth on that at this time, but 
I would like to align myself with the comments of my colleague from 
Idaho, Senator Craig, who spoke earlier on that issue Mr. President. I 
strongly endorse the views of Chief Justice Rehnquist who recently 
stated in the case of Dolan v. City of Tigard, (U.S. June 24, 1994) 
that there is ``no reason why the takings clause of the fifth 
amendment, as much a part of the Bill of Rights as the first amendment 
or fourth amendment, should be relegated to the status of a poor 
relation.''
  Finally, I followed with interest the questions posed to Judge Breyer 
with regard to religious schooling and home schooling. His opinion in 
New Life Baptist Church Academy versus Town of East Longmeadow, that 
town authorities could conduct a review of the curriculum of a 
religious school, caused me some initial concern. However, based on his 
responses to Senator Simpsons questions, I am encouraged that Judge 
Breyer has no bias against religious schooling or home 
schooling.
  Mr. LEAHY. Mr. President, when I was in the Supreme Court a few weeks 
ago, I was reminded of the feel of the chamber. The courtroom itself is 
more cramped than you might expect. The bench, the chairs, the lectern 
and the counsels' tables are all simple in their design. There is 
seating for the public.
  Yet the importance of this room is enormous--one cannot enter that 
room without having a feeling about what happens in it. This is where 
our most precious rights and freedoms are protected through the 
decisions of the justices of the Supreme Court--the right to free 
speech, the right to practice one's faith, the right to a jury of one's 
peers and to due process, the right to vote. Nowhere on the face of the 
globe or in the history of mankind has a Nation guaranteed such 
liberties.
  It is no wonder that this place evokes such powerful feelings, and it 
is no wonder that the American people place so much importance on the 
naming of a person to take a seat behind the bench in this courtroom.
  Judge Stephen Breyer has been nominated to be one of the nine persons 
who will question and debate and judge in this room as one of the final 
arbiters of the meaning and application of the Constitution of the 
United States and the basic freedoms of us all. He will follow in the 
path of John Marshall, Oliver Wendell Holmes, Jr., Louis D. Brandeis, 
Hugo L. Black and Thurgood Marshall. These are very large shoes to 
fill, to be sure.
  I have reviewed Judge Breyer's record. It is an exhaustive record of 
judicial opinions, law review articles and speeches. This record has 
earned Judge Breyer the reputation of being among the Nation's leading 
judges and legal scholars. I was struck by its breadth and distinction. 
He is without question a person with the legal acumen necessary to sit 
on the Supreme Court.
  As I stated at his hearing and again when the Judiciary Committee 
voted unanimously to send his nomination to the full Senate, an 
essential, but sometimes overlooked, attribute of any judge is that he 
or she be fair. Justice requires that all litigants, regardless of 
their cause, can present their case and have it decided on the basis of 
the facts and the law, not on any predisposition of a particular judge 
hearing the case. My sense from reviewing Judge Breyer's record is that 
he is fair--he will take each case individually and decide it on its 
merits under the law. I believe that he has not and will not 
prejudge the outcome on the basis of an existing notion or narrow 
political goal.

  I questioned Judge Breyer on a number of longstanding constitutional 
matters, including freedom of speech, freedom of religion and privacy. 
Judge Breyer spoke eloquently of the dignity of the person. I was 
interested to hear him explain that he looks to this concept in 
determining what rights the Constitution guarantees. Considering 
matters as they may affect the dignity of the individual is a promising 
way to make sure constitutional protections remain vigorous in the 
modern age. I am hopeful that this approach will help the Court decide 
issues that affect our most fundamental freedoms. I was impressed with 
his responses, which revealed a sensitivity toward modern-day free 
speech and censorship questions.
  Finally, I wanted to mention the Lloyd's of London question only to 
say that this debate seems to be headed in the direction of requiring 
all judges to put their holdings in a blind trust. If that is the case, 
we should discuss it openly and determine whether to impose that 
requirement. I see no reason to oppose Judge Breyer. From what I have 
seen, Judge Breyer did everything required of him. Indeed, he filed 
exhaustive financial disclosure reports as all Federal judges are 
required to do, and no questions of conflicts of interest were raised.
  If Judge Breyer is confirmed, I will have participated in 
confirmations for each of the nine justices serving on the High Court. 
During the last 20 years we have had different sorts of Presidents and 
different sorts of nominations to the Supreme Court. Some Presidents 
have used Supreme Court nominees as a wedge to divide the American 
people--to promote an us versus them politics. Often these types of 
nominations have resulted in divisive battles, political pontificating, 
and intensely personal attacks during the confirmation process.
  President Clinton deserves credit for nominating Stephen Breyer. With 
this nomination, like his nomination of Justice Ruth Bader Ginsburg a 
year ago, President Clinton has taken a different course. He has sought 
a nominee who can bring people of diverse views together and who has 
been near universally praised as an excellent candidate. President 
Clinton has chosen someone who people of all stripes--conservatives, 
liberals, whatever--know will provide them a fair hearing and a fair 
reading of the law. The President should be commended for selecting a 
person who can help forge our way into a new century and a new age 
through consensus based in commonly shared constitutional values.
  On the day that President Clinton announced his nomination of Judge 
Breyer, I was struck by Judge Breyer's comments. He said that the law 
has to make practical sense to ordinary people--it has to accord with 
real life. I could not agree more. He writes opinions in a style and 
manner that is accessible generally rather than restricted to lawyers 
or legal scholars. He stated that he will do his utmost to see that his 
decisions reflect both the letter and the spirit of law that is meant 
to help people and will remember the effects his decisions will have 
upon the lives of Americans.
  A justice is charged with making decisions that, quite literally in 
some cases, are of life and death significance. The Court is not a 
place for academic musings. I told Judge Breyer that I want him to be 
the kind of justice who focuses on the effect his decisions have on 
real people--people who may not be powerful or well-connected. I 
suggest that he strive to be the kind of justice who could take the 
case of Barbara Johns--a young girl who had to attend a segregated 
school where classes were held in tarpaper shacks--and turn it into the 
unanimous opinion that was Brown v. Board of Education. I suggest he be 
the kind of justice who would take up Clarence Gideon's habeas 
petition, scrawled by hand on plain paper, and affirm the right of 
every citizen to due process of the law. It is a weighty 
responsibility.
  Mr. LAUTENBERG. Mr. President, there is a certain majesty associated 
with the nomination of an individual to serve on the Supreme Court of 
the United States. Only 107 men and women have served on that Court. 
And during their tenure on the bench, they have a significant influence 
in charting the Constitutional course of the country.
  Once on the Court, each Justice sits as an independent arbitrator. 
Absent an impeachable offense, they are not accountable to the 
President who nominated them, the Senate that confirmed them, or the 
country which lives under the decisions made by them.
  There is, though, a very brief window of opportunity to look into the 
mind and heart of a nominee. For a few days--before the Judiciary 
Committee and the country--they must share with us their thinking on 
basic issues. It is our only opportunity to get a sense of how they 
reach their decisions: what values shape their views, what resources 
inform their rulings, what philosophies will be reflected in their 
Constitutional pronouncements.
  In the past, at times I have been disturbed by those hearings. Some 
nominees have gone to extraordinary lengths to avoid controversy by 
avoiding substance. But short of just voting ``no,'' there really 
wasn't anything the committee could do to compel a nominee to be 
forthcoming if they declined to answer questions.
  Stephen Breyer did not need to be compelled. He was responsive, he 
answered questions forthrightly, he let the country get a sense of who 
he is and what he believes.
  Judge Breyer's decision to explain his values and views made his 
hearings informative and satisfying, dignifying the confirmation 
process for this vital post.
  While I might have some disagreements with some of Judge Breyer's 
positions, on balance I believe they reflect a keen understanding of 
Constitutional principles and doctrine. Let me take just a few moments 
to spell out some of the major factors I considered.
  First, I wanted to be sure that any nominee would support the right 
to privacy contained in Roe versus Wade. I have been disturbed by the 
recent trend to chip away at the protections provided by the historic 
decision; but I have been alarmed by those who believe that trend will 
culminate in a reversal of Roe and a rejection of an expansive 
Constitutional right to privacy which underlies it. Judge Breyer was 
clear on this issue. He said that Roe was ``settled law.'' He suggested 
that the right to an abortion is ``a basic right.'' And while I wish he 
had been more open about his thinking relative to restrictions of the 
kind upheld in the Court's Casey decision, I believe that once he 
explained his basic thinking about Roe, he had legitimate grounds to 
avoid making specific commitments on those issues.
  Second, I wanted to get a clear sense of Judge Breyer's thinking 
about the role of the Court. I am impressed by the deep thought Judge 
Breyer has already given to this complex issue. He recognized, for 
example, the need to respect precedent and the heavy burden that those 
who would upset stare decisis must discharge; at the same time, though, 
he praised the Brown versus Board of Education of Topeka decision and 
rightfully concluded that it brought ``true meaning'' to the 
Constitution's claims of equality under the law. I believe that Judge 
Breyer is sensitive to the constant tension between a necessary respect 
for precedent and a necessary capability for the law to evolve.

  In the same context, I took comfort from his positions on 
``legislative intent'' and ``judicial activism.'' Judge Breyer clearly 
does not subscribe to the flawed theory that the Court must look only 
at a law as passed rather than using legislative history to clarify 
ambiguities and uncertainties. Similarly, when asked about judicial 
activism, Judge Breyer forcefully rejected the notion that a position 
on the bench is license to impose one's personal views on society; but 
he also rejected the artificial and misleading notion that a judge's 
personal philosophy can be checked at the door. I found his comments on 
these issues to be informative, balanced, and sensitive to the constant 
need to examine the facts before reaching conclusions. Perhaps the most 
instructive statement he made in this regard came in response to a 
question from Senator Cohen about his judicial philosophy. Let me quote 
Judge Breyer's comments:

       I always think law requires both heart and a head. If you 
     don't have a heart, it becomes a sterile set of rules removed 
     from human problems . . . . If you don't have a head, there's 
     the risk that in trying to decide a particular person's 
     problem in a case that might look fine for that person, you 
     cause trouble for a lot of other people, making their lives 
     yet worse. So it's [always] a question of balance . . . .

  Third, I was in agreement with Judge Breyer about the separation of 
Church and State.
  I share the nominee's view about the necessity for, and desirability 
of, a reasonably constructed wall to separate Church and State. I 
believe that Judge Breyer articulated the justification for that 
separation when he argued that assuring the neutrality of the state is 
the best way to insure that ``members of each religion [will] be able 
to practice that religion freely, to be able to pass their religion on 
to their children.''
  Finally, Mr. President, I would like to address the issue of the 
potential conflict of interest associated with Judge Breyer's 
investments in Lloyd's of London and his failure to recuse himself from 
cases which might be relevant to that investment. I share Judge 
Breyer's conclusion, expressed in the hearing, that the entire issue is 
a ``a matter of prudence, it is not a matter of ethics.''
  The Judge explained that he had reviewed the specifics of the case--
both at the time he accepted it and subsequently--and concluded that 
the cannons of Judicial ethics allowed him to sit in that case. Still, 
as he promised the Committee, criticism of his behavior in that case 
has sensitized him to the concern it raised. Accordingly, even though 
he is not required to do so, he promised to divest himself from any 
holdings in insurance companies, including Lloyd's, as soon as 
possible.
  Based on my review of the nominee's record and the record he has made 
before the Judiciary Committee, I can find no reason to oppose his 
confirmation and every reason to support it. With the same trepidation 
and faith I have felt each time I have given or withheld my consent to 
a Supreme Court nomination, I will cast this vote to confirm Judge 
Breyer. And I will, in my heart, hope that he will display the wisdom 
and compassion which our country has come to expect from the Court.
  Mr. BYRD. Mr. President, one of the most important and sobering 
responsibilities that we in the Senate have is our role outlined in 
Article II, Section 2 of our Constitution. That is, although the 
President may nominate judges of the Supreme Court, only with the 
``advice and consent of the Senate'' do those nominees assume the 
position of Mr. or Madam Justice.
  I do not take that responsibility lightly. Cases that come before the 
Supreme Court involve some of the most controversial and contentious 
issues that face us as a people. The Court's rulings and opinions have 
a profound impact on all of the citizens of our Nation.
  Let us be mindful that a Supreme Court justice should not only 
possess a keen intellect, but also a reputation for fairness and 
integrity. Judge Stephen Breyer meets those standards.
  Judge Breyer's professional background demonstrates a brilliance and 
a deep commitment to public service. Having graduated from Stanford 
University in 1959, Judge Breyer then studied at Oxford University as a 
Marshall Scholar. After returning to the United States, Judge Breyer 
attended Harvard Law School. There, Judge Breyer was a member of the 
Harvard Law Review, and graduated magna cum laude in 1964. Following 
graduation, Judge Breyer clerked for Supreme Court Justice Arthur 
Goldberg. During this time, Judge Breyer served in the Army Reserves 
for 8 years, and received an honorable discharge in 1965.
  From 1967 to 1981, Judge Breyer was a professor at Harvard Law School 
and at the Harvard Kennedy School for Government. At the same time, 
Judge Breyer held the positions of assistant special prosecutor for the 
Watergate Special prosecution force, Special Counsel, and later Chief 
Counsel for the Senate Judiciary Committee. Judge Breyer's tenure with 
the Judiciary Committee won for him a reputation for fairness, good 
humor, and bipartisanship. Finally, late in the administration of 
President Carter, Stephen Breyer was nominated and confirmed to the 
U.S. Court of Appeals for the First Circuit. Judge Breyer has served 
the Court with distinction since that time, also serving as a charter 
member of the U.S. Sentencing Commission, which is charged with 
examining unwarranted disparity in Federal sentencing, the effects of 
sentencing policy upon prison resources, and the use of plea bargaining 
in the Federal criminal justice system.
  Mr. President, I do not offer my support of Judge Breyer casually. In 
the past few weeks, I have heard from a number of West Virginians, 
predominately those who teach their children at home, who have concerns 
regarding the Judge's ruling in New Life Baptist Church Academy v. Town 
of East Longmeadow. I know that many of my colleagues have similarly 
heard from constituents about this matter. During Judge Breyer's 
several days of confirmation hearings before the Senate Judiciary 
Committee, our colleagues, including Senators Hatch, Thurmond, and 
Simpson, asked Judge Breyer about the New Life ruling. In response to 
questioning by Senator Simpson, I found one particular exchange quite 
helpful. When asked directly about what constitutional questions would 
arise if the state tried to infringe on the rights of home schoolers, 
Judge Breyer responded:

       It [the Constitution] is designed to protect the right of 
     the parents to pass along to their children their religion 
     and to protect that from State interference * * * I think 
     that home schools based on that principle follow from that, 
     and that is why I say somebody who tried to prevent that 
     legally would suddenly face very, very serious constitutional 
     challenges * * *. I think there is a consensus opinion that 
     that First Amendment protects the right of people to pass 
     their religion on to their children, and the home school 
     situation on its face seems to fall within that.

  From his responses, and from my study of the New Life case, I believe 
that Judge Breyer has no bias against home schooling or religious 
schooling. I also found him quite eloquent on the subject of the First 
Amendment and religious freedom in particular.
  I believe that Judge Breyer will be an able addition to the Supreme 
Court. His keen mind, gentle humor, and temperament, combined with a 
deep understanding of the law, should enable him to serve our country 
well.
  Mr. BIDEN. Mr. President, I will say further that Judge Breyer 
actually testified for 22 hours before our committee. And I think my 
friend from Utah will confirm--and all saw it on television--a 
significant amount of that time, he was asked about this potential 
conflict, the so-called Lloyd's of London issue; and further, that we 
did seek the written advice and the verbal counsel of four or five of 
the leading ethicists in the United States of America, recognized by 
all, one of whom thought it was a close call, three of whom thought it 
was not even a close call, and one of whom, if I remember correctly, 
was not sure. There is no need to say more than that.
  I see that we only have one--but our most distinguished--speaker left 
on our side, the majority leader. He is here, and I yield as much time 
as the majority leader feels is necessary.
  Mr. MITCHELL. Mr. President, the Senate will shortly vote on the 
nomination of Judge Stephen Breyer to be the 108th Justice of the U.S. 
Supreme Court in our Nation's history. I believe that President Clinton 
has made an excellent choice, and I urge my colleagues to vote to 
confirm Judge Breyer.
  Judge Breyer's appointment to the Supreme Court is a fitting cap to a 
lifetime spent in public service. He has served in all three branches 
of our Government--as chief counsel to the Senate Judiciary Committee, 
as a top aide in the Justice Department's antitrust division, and, of 
course, as a chief judge in the U.S. Court of Appeals.

  This breadth of experience will serve him well on the Court. He will 
bring with him a unique perspective of the law and how it is made, how 
it is enforced, how it is adjudicated.
  Judge Breyer's nomination deserves and has received strong bipartisan 
support, with the Judiciary Committee unanimously voting to recommend 
his confirmation. Liberals and conservatives alike recognized the merit 
of Judge Breyer's careful, balanced approach to his job.
  During his confirmation hearings and here in debate, concerns were 
raised regarding the nature of some of Judge Breyer's investments. This 
issue was thoroughly explored, and the record shows that he responded 
fully to Senators' concerns.
  Whatever one's view of that matter, I do not find it a sufficient 
basis to reverse my otherwise very favorable impression of Judge 
Breyer's fitness to serve on the Supreme Court. It certainly should not 
detract from the reputation he has earned as a fair, considerate, and 
thoughtful judge.
  Since being appointed to the Federal bench in 1980, Judge Breyer has 
proven himself a skilled jurist. President Clinton, announcing the 
Breyer nomination, noted ``his sheer excellence, his broad 
understanding of the law, his deep respect for the role of the courts 
in our life and in protecting our individual rights, and his gift as a 
consensus builder.''
  Judge Breyer's opinions are known for their clarity and compelling 
logic. He recognizes that opinions are supposed to shed light on a 
point of law, rather than add to their confusion.
  A professor and a jurist, Judge Breyer is well versed in the law. He 
has written many notable opinions in diverse areas, including civil 
rights, criminal law, constitutional liberties, economic regulation, 
and environmental protection.
  His rulings have served to protect access to Federal courts for all 
Americans, to ensure the rights to free speech and freedom of religion, 
to protect the civil rights of all Americans, and to enforce the 
criminal law fairly by balancing the interests of law enforcement with 
individual rights.
  While many of the Supreme Court's high profile cases involve these 
sorts of issues, many of the less visible cases involve commercial or 
administrative issues. Judge Breyer has established himself as one of 
our Nation's leading authorities on antitrust and economic regulation.
  He has decided many cases involving the controlling of health care 
costs and prescription drug prices, preventing price discrimination, 
and defining predatory pricing under the antitrust laws.
  In each of these cases, he has worked to ensure that antitrust laws 
are used in the way they are intended--to protect consumers. He has 
thought and written extensively about these matters, and his expertise 
is unquestioned.
  His knowledge in these difficult areas will be beneficial in the 
Court's deliberations. His skill as a consensus-builder will further 
benefit the Court.
  In the First Circuit Court of Appeals, where he is currently chief 
judge, dissents are few. Judge Breyer has an uncommon ability to bring 
people with divergent viewpoints together, to find common themes, and 
to help groups reach consensus.
  Perhaps most important, no matter what the subject before him, Judge 
Breyer remembers that his decisions and opinions will affect the lives 
of real people. During his confirmation hearings, he told the committee 
that justice requires ``both a heart and a head.''
  He explained that without a heart, the law ``becomes a sterile set of 
rules removed from human problems, and it won't help.'' And yet without 
a head, he said, ``there's the risk that in trying to decide a 
particular person's problem * * * you cause trouble for a lot of other 
people.
  Judge Breyer's rulings show that he uses his heart and his head, 
bringing both compassion and intellect to the Federal bench. He takes 
into account both the requirements of the letter of the law and the 
needs of human beings who present their cases.
  Stephen Breyer is an outstanding judge, and I believe he will be an 
outstanding Supreme Court jurist.
  I urge my colleagues to support his nomination.
  I thank my colleagues and yield the floor.
  Mr. HATCH. Mr. President, I ask for the yeas and nays.
  Mr. BIDEN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. BIDEN. Mr. President, I will take only 30 seconds.
  I have only one regret relative to this nomination, and that is that 
our last speaker did not choose to take this seat.
  The single most qualified person to serve on the Supreme Court of the 
United States, and I say this without equivocation, is the man who just 
spoke.
  I am sure the opportunity will come again. I hope he is more 
enlightened next time in the sense of saying yes.
  But that in no way is to reflect negatively on Judge Breyer. We say 
there is no one more qualified than Judge Breyer save one I can think 
of, and that is George Mitchell. But maybe we will have a chance to 
work on that another time.
  I yield back the remainder of the time.
  Mr. HATCH. I yield back the remainder of our time.
  The PRESIDING OFFICER. All time is yielded back.


                                  Vote

  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Stephen G. Breyer, of Massachusetts, to be 
an Associate Justice of the Supreme Court? On this question, the yeas 
and nays have been ordered, and the clerk will now call the roll.
  Mr. MITCHELL. Mr. President, if I may have the attention of my 
colleagues, it has been the practice in the Senate that votes on 
Supreme Court nominations are made from the Senator's desk. I ask that 
Senators cast their votes from their desks during this vote.
  The PRESIDING OFFICER. All Senators will stand back from their desks 
as their names are called and cast their vote.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. Pell. I announce that the Senator from Florida [Mr. Graham] is 
necessarily absent.
  I further announce that the Senator from Rhode Island [Mr. Pell] is 
absent on official business.
  I further announce that, if present and voting, the Senator from 
Florida [Mr. Graham] would vote ``yea.''
  Mr. SIMPSON. I announce that the Senator from Minnesota [Mr. 
Durenberger] and the Senator from Wyoming [Mr. Wallop] are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Wyoming [Mr. Wallop] would vote ``yea.''
  The result was announced--yeas 87, nays 9, as follows:

                      [Rollcall Vote No. 242 Ex.]

                                YEAS--87

     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boren
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Byrd
     Campbell
     Chafee
     Cochran
     Cohen
     Conrad
     Craig
     D'Amato
     Danforth
     Daschle
     DeConcini
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Glenn
     Gorton
     Gramm
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mack
     Mathews
     McCain
     McConnell
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pressler
     Pryor
     Reid
     Riegle
     Robb
     Rockefeller
     Roth
     Sarbanes
     Sasser
     Shelby
     Simon
     Simpson
     Specter
     Stevens
     Thurmond
     Warner
     Wellstone
     Wofford

                                NAYS--9

     Burns
     Coats
     Coverdell
     Helms
     Lott
     Lugar
     Murkowski
     Nickles
     Smith

                             NOT VOTING--4

     Durenberger
     Graham
     Pell
     Wallop
  So the nomination was confirmed.
  The PRESIDING OFFICER. Under the order of July 28, the motion to 
reconsider is tabled.

                          ____________________