[Congressional Record Volume 140, Number 105 (Wednesday, August 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 3, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
         NOMINATION OF STEPHEN BREYER TO THE U.S. SUPREME COURT

  Mr. DURENBERGER. Mr. President, I would like to discuss my support of 
the nomination of Judge Stephen Breyer to the United States Supreme 
Court. I regret that I was not able to cast my vote in support of Judge 
Breyer due to the fact that I had a prior commitment out of town which 
resulted in my absence the afternoon of the vote.
  I have always taken very seriously my responsibility as a Senator to 
advise and consent on presidential nominations. In my mind, my role is 
not to confirm only those nominees who agree with me on political 
issues. I have never applied a litmus test on any subject, such as 
abortion and the death penalty for example, even though I have strong 
convictions about both.
  Regardless of the party in the White House, I have always asked three 
questions to determine whether presidential nominees deserve 
confirmation. First, does the nominee have the experience necessary to 
do the job? Second, does the nominee have the temperament to serve 
honorably? And finally, does the nominee have the character to be 
entrusted with the responsibility?
  Without a doubt, Stephen Breyer has the experience necessary to serve 
as a Supreme Court Justice. He has had an exemplary career in the 
executive, legislative, and judicial branches. He has served on the 
federal bench for fourteen years, and spent the last 4 years as chief 
judge of the First Circuit Court of Appeals.
  On the question of temperament, I believe Judge Breyer is qualified 
to serve on America's highest court. His decisions on the Federal bench 
have the reputation of being thoughtful and well-reasoned, without 
suggesting any particular political agenda. I trust he will continue to 
apply the law neutrally and fairly.
  And finally, based on the evidence that is available, I have 
concluded that Judge Breyer has the character necessary to be entrusted 
with a seat on the Supreme Court.
  I am aware that questions have been raised about Judge Breyer's 
membership in a Lloyd's of London syndicate that underwrites insurance 
for corporations with potential liability for environmental clean-up 
costs--at the same time he was reviewing toxic waste cases as a Federal 
appeals judge.
  But there is no evidence that his decisions had a direct impact on 
any of his investments, and I believe Judge Breyer's assertion that his 
impartiality was not affected in any of those cases.
  Rather than showing a defect in character, I believe this was a case 
of bad judgment. My distinguished colleague from Indiana, Senator 
Lugar, has raised several valid points about the judgment that Judge 
Breyer exercised with respect to this investment.
  However, I have concluded that this single error in judgment should 
not, in itself, preclude membership on the Supreme Court. I do not 
think that a reasonable measure of any person is the worst mistake they 
ever made. Instead, I look at the entire record of accomplishment, his 
record of reasonable decisions, his record of diligent work for 
justice, his temperament and his character. By that measure, Stephen 
Bryer is worthy of a seat on the Supreme Court. That is why I would 
have voted to confirm this nominee.


   judge stephen breyer's book ``breaking the vicious circle: toward 
                       effective risk reduction''

  Mr. President, in 1993 Judge Breyer published a book with the title, 
``Breaking the Vicious Circle: Toward Effective Risk Reduction.'' While 
I realize that Judge Breyer's personal views on public policy matters 
are not relevant to the debate on his nomination, I did want to take 
this opportunity to comment on the views communicated in his book.
  The central premise of his book is that the efforts of the Federal 
Government to reduce risks to public health and the environment are not 
well focused and produce inconsistent and illogical results.
  The cause of this problem in Judge Breyer's view is the disjointed 
decision-making process that we in the Congress and as a nation use to 
choose the risk reduction policies that are actually imposed. The 
sources of risk to human health and the environment come to the 
attention of the public and the Congress one at a time. They are 
considered by a multitude of committees and subcommittees in the 
legislature. They are regulated under a series of statutes with 
disparate goals and objectives. The statutes are carried out by several 
departments and agencies of the executive branch.
  In Judge Breyer's view, the result is a confusing and wasteful web of 
regulations that do not achieve the greatest risk reduction for the 
dollars we invest. He points to a swamp in New Hampshire that is 
cleaned up to extraordinary levels under the Superfund program, while 
Boston Harbor remains polluted. He cites a five-fold discrepancy in 
risk assessment outcomes between EPA and FDA methods. He reports 
examples of risk reduction regulations that may actually increase 
health risks from other sources.
  Judge Breyer is not alone in raising these concerns. In 1987, the EPA 
itself published a study called ``Unfinished Business'' which suggested 
that government and private sector resources were being wasted because 
government policy too often regulated low-level risks while larger 
threats went unaddressed. And in 1990, the Science Advisory Board of 
EPA came to a similar conclusion in its report, ``Reducing Risk.''

  No one could argue with the proposition that we ought to allocate the 
resources we devote to risk reduction as carefully as possible. And 
everyone would agree that decisions based on solid scientific 
information are usually better than decisions guided by hunches, 
superstition, or bias.
  However, we must often make decision before all the evidence is in. 
Congress is constantly called upon to make decisions that allocate 
billions of public and private dollars toward one problem or another 
often before the science on causes and solutions is settled. We make 
difficult choices that are criticized from every direction.
  Judge Breyer proposes a new super-agency with wide-ranging authority 
to reallocate government efforts as a solution to these problems. But 
there is no technical, scientific or bureaucratic fix for our 
condition. There is no philosopher king or group of senior bureaucrats 
who can relieve the Congress of the difficult job of setting priorities 
in a world of competing interests and limited knowledge. And there is 
not reason to believe that Congress has chosen incorrectly in the past.
  A complete response to the concerns that Judge Breyer raises in his 
book would fill many pages of the Record. I would make just two brief 
points, today.
  First, this is not a technical problem that can be solved by 
appointing an agency with broader powers and better staff. Allocating 
budgets, imposing regulatory costs, is an act of expressing values. And 
in a democracy we do it by voting.
  There is not one objective yardstick on which one can rank the 
relative importance of all these competing objectives. How much do you 
spend on childrens' health, before you start spending money to save 
endangered species? This is a question of preferences that in our 
system of government is assigned to elected Members of the Congress, 
not appointed members of science boards.
  Second, even where one yardstick of risk can be applied, for instance 
the risk of contracting fatal cancer, it does not necessarily follow 
that allocating resources to achieve the largest risk reduction is an 
absolute guide to policy. I believe that the public is more willing to 
accept small risks widely distributed, than large risks focused on the 
few. It is not just the absolute mortality, but also the equity, the 
distribution of the risk, that informs the public's sense of 
priorities.
  The public gets incensed about hazardous waste sites and leaking 
underground storage tanks because they are immediately devastating to 
their victims, even if those victims are few in number, and hundreds 
more could be saved by spending the same dollars cleaning up indoor air 
quality. Allocating public and private resources to achieve the 
greatest reduction in risk for each dollar spent is not the best public 
policy, because it fails to reflect the public's sense of equity and 
justice. How much an industry should be required to spend to prevent 
its externalities from imposing unjustified costs on others is, unless 
one takes an absolutist view, a value-laden decision that can only be 
made in the context of our entire social experience.
  I am all for more science. And the Congress has a fundamental 
obligation to spend the taxpayers' money as wisely as possible. We 
often make mistakes. But I do not agree that the anecdotes cited in 
Judge Breyer's book call into question either the process we have used 
to select environmental priorities or the allocation of resources now 
reflected in the budget and regulations of EPA and the other agencies 
we charged to protect public health and the environment.

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