[Congressional Record Volume 168, Number 19 (Monday, January 31, 2022)]
[Senate]
[Pages S398-S399]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Tribute to Stephen G. Breyer

  Madam President, on a final matter, last week, Justice Stephen Breyer 
announced his plans to retire from the Supreme Court at the conclusion 
of this term.
  Justice Breyer deserves our country's hearty congratulations. By this 
summer, he will have dedicated more than four decades of service to the 
Federal judiciary, including 28 years on our highest Court. During this 
time, the Justice has won respect and admiration from across the legal 
profession.
  One does not have to agree with the substance of Justice Breyer's 
legal philosophy or the conclusions he has reached in many cases to 
appreciate the service he has rendered to the Court and to our country.
  He is universally regarded as a careful and committed jurist. He is a 
top-shelf legal expert and intellectual heavyweight. In fact, Justice 
Breyer has published prolifically even beyond his caseload. Over the 
decades, the Justice has spent many hundreds of published pages 
transparently laying out his legal philosophy and thinking through 
scholarly questions in public view.
  Most of all, I admire Justice Breyer's staunch defense of the 
institution of the Supreme Court itself in the face of increasingly 
reckless rhetoric from loud voices on the political left who would like 
to consider themselves intellectually aligned with Justice Breyer.
  The Justice proved that, in fact, they are not. He has been a loud 
and consistent opponent of disastrous ideas such as modern Democrats' 
partisan Court-packing proposals that would destroy public trust and 
deal a permanent blow to the rule of law.
  So my warm best wishes are with Justice Breyer, his wife Joanna, and 
the Breyer family as the Justice concludes his term and his truly 
remarkable tenure.
  Naturally, the country's focus now turns to the next chapter for the 
Court, which President Biden and the Senate will author together.
  For now, I will simply note a basic fact: President Biden was elected 
on the specific promise to govern from the middle, steward our 
governing institutions, and unite a divided country. Underscoring that 
point, the American people handed President Biden a dead-even Senate, 
50-50.
  I suggest that President Biden bear this in mind as he considers whom 
to nominate to our highest Court. The American people deserve a nominee 
who has demonstrated reverence for the written text of our laws and our 
great Constitution.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, in keeping with the remarks of the 
Republican Senate leader, I would like to start with recognition of 
Supreme Court Justice Stephen Breyer's contribution to America.
  On July 12, 1994, a court of appeals judge named Stephen Breyer 
appeared before the Senate Judiciary Committee. It was the first day of 
his Supreme Court confirmation hearing. As he began speaking, Judge 
Breyer laid out his view of the law and its role in maintaining the 
fabric of American life.
  He said: ``I believe the law must work for people.''
  He argued that our Nation's vast web of ``Constitution, statues, 
rules, regulations, practices and procedures . . . has a single basic 
purpose.''
  That purpose, he said, ``is to help the many different individuals 
who make up America, from so many different backgrounds and 
circumstances, with so many different needs and hopes, live together 
productively, harmoniously, and in freedom.''
  In his nearly three decades on the Supreme Court, Justice Stephen 
Breyer has lived by those words. He has helped ensure that the law is a 
force for good, a force for unity, and a force for freedom and 
equality.
  So, for me, I have truly mixed feelings as I stand here today and 
look back on the incredible legacy of Justice Breyer, who announced 
last week that he would retire at the end of this term.
  And what a legacy he leaves.
  Born in San Francisco, Stephen Breyer attended Stanford University 
and Harvard Law, and just 3 years after graduating from Harvard, he 
returned to the school as a professor, a role in which he inspired a 
generation of jurists, public servants.
  He held a few other occupations as well. He served our country as a 
corporal in the U.S. Army and in the Army Reserve. He was a clerk for 
Supreme Court Justice Arthur Goldberg, a member of the Watergate 
special prosecutor's office, and chief counsel to the Senate Judiciary 
Committee, which I am honored to chair. From there, he was appointed to 
the U.S. Court of Appeals for the First Circuit, where he served for 
nearly 14 years before his confirmation to the U.S. Supreme Court.
  And I might add, for the record, his vote on confirmation to the 
Court was 89 to 7. It was a remarkable showing of strength and support 
for a man whose politics were clear, as he served with Ted Kennedy on 
the Senate Judiciary Committee as his lead counsel for many years.
  Justice Breyer's record when he came to the Supreme Court was nothing 
short of awe-inspiring. From voting rights to women's reproductive 
freedom, from criminal justice to consumer protection, from campaign 
finance to immigration, Justice Breyer's voice has been powerful, 
pragmatic, thoughtful, and enduring, whether in the majority or in 
dissent.
  Consider, for instance, Justice Breyer's dissenting opinion in the 
1995 case, United States v. Lopez. In that case, the Court's 
conservative majority overturned the Gun-Free School Zones Act, finding 
that the statute exceeded Congress's power under the commerce clause, a 
clear departure from existing, standing precedent. In his dissent, 
Justice Breyer melded sound constitutional interpretation with his 
signature pragmatism. Citing the facts and the law, he methodically 
explained how the widespread problems caused by gun violence in and 
around schools clearly affected and threatened commerce.
  He concluded: ``Holding that the particular statute before us falls 
within the commerce power would not expand the scope of the Clause. 
Rather, it would simply apply preexisting law to changing economic 
circumstances. It would recognize that, in today's economic world, gun-
related violence near the classroom makes a significant difference in 
our economic as well as our social well-being.''
  That was one of the many opinions that captured Breyer's vision of 
the law as a force for productivity, for harmony, and for the well-
being of the American people.
  Fast forward 20 years. The case was Glossip v. Gross. In that case, 
they challenged a form of lethal injection as violating the Eighth 
Amendment's ban on cruel and unusual punishment. The Court's 
conservative majority rejected the challenge. But once again, Justice 
Stephen Breyer responded with conscience and clarity. With his keen 
analysis and pragmatic reasoning, he explained the constitutional 
infirmities of the death penalty. He wrote: ``Nearly 40 years ago, this 
Court upheld the death penalty under statutes that, in the Court's 
view, contained safeguards sufficient to ensure that the penalty would 
be applied reliably and not arbitrarily. The circumstances and the 
evidence of the death penalty's application have changed radically 
since then. Given those changes, I believe it's now time to reopen the 
question.''
  Let me say, parenthetically, it is interesting for me to note how 
many Supreme Court Justices, late in their term, facing retirement or 
nearing it, reflected on the death penalty. Justice Blackmun was 
another. And it says to me that these cases that they decided, once 
with an eye towards consistency, weighed on their consciences, and they 
came to conclude that the death penalty truly needed to be questioned 
under our constitutional values.
  Justice Breyer, in that case, recognized that in our system of 
justice,

[[Page S399]]

punishment must not only be firm but fair. During his 28 years on the 
Court, Stephen Breyer has been a stalwart defender of Americans' 
constitutional rights.
  As I mentioned, years before he was confirmed to the Supreme Court, 
Justice Breyer sat on the Court of Appeals for the First Circuit, 
located in Boston. Today, on the banks of Boston Harbor, stands a 
building that reflects his lifetime of service: the John Joseph Moakley 
United States Courthouse. Let me add, I knew Joe Moakley. He was my 
colleague and friend in the House. Then-Judge Breyer helped design that 
courthouse, and he still has an office there.
  The building features a curved glass wall, stretching across tens of 
thousands of feet, so passersby can peer into the courthouse during the 
day. It is designed to provide a clear view into the administration of 
justice. Engraved on the wall in the building are the names of the 
workers who had a hand in building it. Alongside the names of 
bricklayers and carpenters, etched in equal standing, is Stephen 
Breyer.
  Those two principles reflected in the building--transparency and 
equality--have, in many ways, defined Stephen Breyer's legal philosophy 
and his contribution to America. He understands that our system of 
justice is stronger when the American people understand how the law 
works and when the law works for them.
  Now, we must carry that tradition forward. Soon, President Biden will 
announce his selection for Justice Breyer's successor to the Supreme 
Court--big shoes to fill. But I have no doubt that President Biden will 
select a jurist who parallels Justice Breyer in intellect, ability, and 
dedication to public service.
  With his retirement, we have an opportunity to confirm another 
outstanding Justice, one who will indeed champion the freedoms and 
liberties we hold so dear, one who will also remain faithful to the 
rule of law and who will approach her work on the Court with the same 
thoughtful dedication displayed by Justice Breyer.
  We don't yet know who the nominee will be, but here is what we do 
know: No matter the nominee, we will undertake a process in the Senate 
Judiciary Committee that is both fair and timely. This process will 
afford Senators an opportunity to review the nominee's record and 
question the nominee thoroughly, while at the same time ensuring the 
nominee is treated respectfully and receives a prompt confirmation 
vote. We owe that not just to this nominee but to the American people.
  Let me close by turning to Justice Breyer's opening statement before 
the Judiciary Committee--July 12, 1994. America was watching when 
Justice Breyer said: ``You are now considering my appointment to the 
Supreme Court of the United States. That Court works within a grand 
tradition that has made meaningful, in practice, the guarantees of 
fairness and of freedom that the Constitution provides.''
  He said, ``I promise you, and I promise the American people, that if 
I am confirmed to be a member of the Supreme Court, I will try to be 
worthy of that great tradition.''
  There is no doubt in my mind or in the mind of any objective analyst, 
Stephen Breyer has proven himself worthy of that great tradition.
  Whoever his successor may be, I am confident she will do the same.
  I want to personally thank Justice Breyer, as a Member of the Senate 
but as an American citizen first, for his thoughtfulness, his spirit of 
collegiality and consensus building, and for always working to advance 
the Constitution's guarantees of fairness and freedom.