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Nominee Unlikely to Take Predecessor's Liberal Path : Law: Breyer is known for an interest in economics. His opinions tend to be narrow and technical.

May 14, 1994|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — After another exhaustive search for a Supreme Court nominee, President Clinton on Friday settled on a Democratic judge who is likely to prove more conservative than the Republican appointee he replaces.

Harry Blackmun, 85, who retires in June, is the high court's leading liberal, the justice most likely to side with the underdog. He is a champion of women's rights, an advocate of constitutional protection for gays and a foe of the death penalty.

Clinton's nominee, Judge Stephen G. Breyer of Boston, is known as a cautious, scholarly judge with a deep interest in antitrust law and economic regulation. He has not taken clear stands on controversial issues, and his opinions tend to be dry, narrow and technical.

In many ways, Breyer resembles Ruth Bader Ginsburg, the highly capable judge who was President Clinton's first nominee after a similarly lengthy search.

In 1980, both Breyer and Ginsburg had liberal credentials when they were appointed as judges by President Jimmy Carter. Where Ginsburg had fought for women's rights, Breyer had served as a committee counsel for Sen. Edward M. Kennedy (D-Mass.), perhaps the Senate's best-known liberal.

But on the bench, Breyer, like Ginsburg, proved hard to typecast. They both decided cases narrowly and shunned ideological stands. Privately, liberal advocates tended to denigrate Breyer and Ginsburg as technocrats, while conservatives applauded them for sticking closely to legal precedents.

In the Almanac of the Federal Judiciary, which surveys opinions among practicing lawyers, Judge Breyer is praised as "exceptionally smart" and a "true scholar."

But most could not pin him down as having a clear philosophy, whether conservative or liberal.

"He is surprisingly pro-government in criminal cases," one lawyer commented. "He has the intellect to be a truly great jurist," another said, "but his lack of understanding of the real world hurts him."

Breyer is unlikely to alter the ideological makeup of the Supreme Court.

The current high court has a strong conservative wing led by Chief Justice William H. Rehnquist and Justice Antonin Scalia. If given a clear majority, they would almost certainly outlaw affirmative action and overturn the Roe vs. Wade ruling that legalized abortion nationwide.

But they have been checked by a moderate bloc on the court that prefers to maintain the status quo. They are led by Justices Sandra Day O'Connor and David H. Souter. If Breyer follows his past pattern, he may align with these middle-of-the-road justices, thereby cementing the status quo.

But no one can predict with much confidence about how a justice will turn out, as Blackmun's career well illustrates. In 1970, a frustrated President Richard Nixon turned to Blackmun after his first two choices had been rejected by the Senate. Clearly not enthused by his nominee, Nixon did not even appear with Blackmun to make the announcement.

To the surprise of nearly everyone, the cautious and stolid Blackmun emerged in his later years as a staunch liberal.

In his comments Friday, Clinton implied that Breyer was his third choice for the job, having decided to again skip over Interior Secretary Bruce Babbitt for political reasons and to bypass Judge Richard S. Arnold for health reasons.

"He's the safe choice. He's is the course of least resistance," Nan Aron, director of the liberal Alliance for Justice, said of Breyer.

Arthur J. Kropp, president of People for the American Way, called Breyer a "distinguished jurist with a moderate-centrist record."

In 1990, Breyer joined a unanimous appeals court decision that struck down on free-speech grounds the so-called "gag rule" against counseling women about abortion at federally funded family planning clinics. But that decision was later overturned in a 5-4 ruling by the Supreme Court.

Kate Michelman, president of the National Abortion and Reproductive Rights Action League, said her organization was encouraged by Breyer's stand on the "gag rule" case.

"However," she added, "his position in a 1989 case involving a two-parent consent law is cause for some concern." In that Massachusetts case, he dissented on a ruling that would have given women a chance to contest a state restriction on a young woman's access to abortion.

In legal circles, Breyer is best known not for his judicial opinions, but for championing his free-market views and a skepticism about government regulation of the economy.

As a Senate aide, he worked on the legislation that deregulated the airline industry. In recent years, he has written widely about health and safety regulation, often raising doubts about cost and wisdom of such government interference.

As a result, the strongest opposition to his nomination will likely come from traditionally liberal champions of consumer protection and environmental regulation.

"He's a bad choice," consumer activist Ralph Nader said of Breyer. "He is no friend to workers, consumers or the environment, and he's never met a corporate merger he didn't like. He would have been a good nominee for (President Ronald) Reagan or (President George) Bush."

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