Clinton Picks Moderate Judge Breyer for Supreme Court Spot : Judiciary: President says the scholarly nominee has 'proven that he can build an effective consensus.' The federal jurist has wide bipartisan support in the Senate.

By PAUL RICHTER

May 14, 1994 12 AM PT

TIMES STAFF WRITER

WASHINGTON — Rejecting candidates who appeared to be politically riskier, President Clinton on Friday chose federal Judge Stephen G. Breyer, a scholarly centrist jurist with bipartisan support, to fill his Administration’s second vacancy on the Supreme Court.

In a hastily convened press conference, Clinton hailed the 55-year-old Boston jurist as a candidate of “excellence,” with a keen mind, a respect for civil rights and an ability to explain the laws to average Americans. He said that Breyer, who would replace retiring Justice Harry A. Blackmun if confirmed by the Senate, has “proven that he can build an effective consensus. . . . Without dispute, he is one of the outstanding jurists of our age.”

Breyer has sat on the U.S. 1st Circuit Court of Appeals in Boston since 1980 and was named chief judge in 1990. A runner-up in last year’s Supreme Court search, Breyer earlier was chief counsel to the Senate Judiciary Committee, under Sen. Edward M. Kennedy (D-Mass.).

The Rose Garden announcement ended a tortuous and increasingly fevered 37-day search in which Clinton apparently had been ready, in recent days, to choose Interior Secretary Bruce Babbitt or federal appeals Judge Richard S. Arnold of Arkansas.

But Clinton said he “couldn’t afford to lose” Babbitt from his sensitive Cabinet post. And, he said, he could not risk choosing his old Arkansas friend until questions about his nearly two-decade-old cancer were resolved.

With enthusiastic support from Republicans, Breyer’s nomination is likely to sail through the Senate confirmation proceedings, sparing Clinton any distracting controversy as his health reform bill wends its way through Congress.

But the selection leaves Clinton open to criticism that he yielded to pressure from Senate conservatives who had expressed unhappiness at the prospect that the more liberal Babbitt could be chosen. Indeed, some aides had been pushing Clinton to choose Babbitt and prove that he would not allow the opposition of Sen. Orrin G. Hatch (R-Utah), ranking minority member of the Senate Judiciary Committee, or other conservative Republicans to influence his Supreme Court choices.

The announcement brought plaudits from conservatives and hesitation from some liberals. Sen. Strom Thurmond (R-S.C.), for example, called Breyer an “excellent choice,” and he drew praise as well from Hatch and Sen. Alan K. Simpson (R-Wyo.), both Judiciary Committee members.

But Sen. Howard M. Metzenbaum of Ohio, a liberal Democrat, said that he had concerns about Breyer’s “moderate to conservative” record. “He’s been more concerned about the situation of big business” and less about that of smaller companies and the less well off, Metzenbaum said.

Breyer is said to have given up a promising political career for a life on the bench. He has been described as skilled in forging consensus among his colleagues.

One sign of his talents was the fact that he won over both the parties while he was majority counsel to the Judiciary Committee. Indeed, he was confirmed to the federal court after his sponsor, President Jimmy Carter, was defeated in 1980, because he had become so well-liked by committee conservatives.

Lawyers who have worked with him in New England praise him as quick, scholarly and nonpartisan, if a bit imperious.

Financial disclosure forms show he is worth several million dollars in stocks and bonds. The Supreme Court annual salary is $164,100.

Although Breyer’s legal credentials may be unassailable, he is not the nationally respected political figure that Clinton once said he wanted to appoint to ensure that social realities are represented on the court. Clinton’s first choice last year for the previous court opening was New York Gov. Mario M. Cuomo, and this year he first sought Senate Majority Leader George J. Mitchell, who withdrew his name from consideration.

With a scholarly manner that Georgetown University law professor Paul Rothstein called “almost egghead,” Breyer is probably not the person with a common touch and “big heart” that Clinton had said he was seeking.

And, indeed, Breyer--despite his impressive judicial credentials--also may not be the major figure Clinton had sought--one who would be immediately hailed by all sides as a towering addition to the high court.

The selection also leaves Clinton vulnerable to criticism that he has disappointed minorities, and, in particular, Latinos, after raising hopes that one of their number might be chosen. Federal Judge Jose A. Cabranes of Connecticut was mentioned as a candidate during the search, but he faded from contention. Some liberal advocates have complained that the presence of his name was “window dressing.”

Clinton’s finalists were all white males from Harvard, a fact that will make it far harder for the diversity-conscious Clinton to choose anyone but a minority if he receives a third opportunity to name a justice. Some court-watchers believe that Justice John Paul Stevens may retire next year.

The selection also leaves Clinton vulnerable to criticism that in his deliberations on the court he treated other candidates poorly by raising expectations that they were about to be chosen. Such criticism was directed at Clinton last year when he passed over Breyer--after a highly publicized Oval Office meeting--in favor of Justice Ruth Bader Ginsburg.

Clinton seemed to be trying to prevent such criticism by lavishly praising Babbitt and Arnold in his Rose Garden press conference. As a former governor, Babbitt would bring to the court “the responsibility and discipline of service in public life,” and a feel “for life at the grass roots.”

He cited Arnold’s reputation, noting that 100 federal judges, a full eighth of the federal bench, had written him to endorse Arnold’s character. And he said that if he had another chance to select a Supreme Court justice “I will consider Judge Arnold at the top of the list.”

As Clinton increasingly focused on the issue this week, he first appeared to favor Babbitt, then Arnold but only on Friday--within two hours of the announcement--made up his mind to name Breyer.

Between Monday and Wednesday Clinton seemed ready to name Babbitt, and many White House aides were highly enthusiastic at the prospect of selecting the one-time presidential candidate. But at a meeting in the White House residential quarters, it became clear that “the President wasn’t there,” said one aide.

Chief of Staff Thomas (Mack) McLarty took the President aside in a White House kitchen, and the pair decided to consider Arnold, an old friend and the President’s “sentimental favorite.”

But a review of the Senate revealed that the selection of Arnold would stir unhappiness among a number of women Democratic senators--Dianne Feinstein and Barbara Boxer of California, Barbara A. Mikulski of Maryland, Patty Murray of Washington and Carol Moseley-Braun of Illinois. There also, of course, was the question of Arnold’s cancer.

On Thursday, McLarty asked for additional reports on the prognosis for the cancer, for which Arnold is soon to receive additional treatments.

The final decision was made by the President at about 4 p.m. Friday, after he spent about half an hour reflecting by himself on the choice.

Last year, Clinton had met Breyer in the Oval Office, where, aides said later, the “chemistry” between the two had been bad. But aides told Clinton this year that the problem may have been only that Breyer was too ill from a long railroad trip from Boston and a punctured lung he had suffered in a bicycle accident, to give the meeting the required concentration.

After the decision Friday, Clinton called Breyer, who was “thrilled,” according to an aide. Clinton suggested that Breyer visit the White House with his wife this weekend, telling him they could stay in the Lincoln Bedroom.

Aides acknowledged that there was some concern that a Babbitt confirmation proceeding “wouldn’t be completely clean.” But he insisted that that consideration was far less important than concerns that it would be hard to replace Babbitt at Interior, a post that Clinton considers key to his Western political strategy.

The aide played down suggestions that the selection would draw criticism that Clinton was not willing to fight for what he wanted. “He’s not afraid of a fight--anyone who watched him on the (North American Free Trade Agreement) knows that,” the aide said.

The 6 p.m. Friday announcement came at a time Presidents usually reserve for information they wish to play down in the media. But the aide called this “pure happenstance.”

From Harvard to High Court Nominee

Stephen G. Breyer is a highly respected Boston jurist with a background in teaching. If confirmed, he will replace retiring Justice Harry A. Blackmun. Though Breyer is considered a moderate, it is unclear whether his opinions would lean toward the liberal or conservative side.

PROFILE

Birthplace: San Francisco

Age: 55

Education: Stanford University, Oxford University, Harvard Law School.

Experience: U.S. 1st Circuit Court of Appeals judge since 1980, former professor at Harvard Law School.

CURRENT SUPREME COURT MAKEUP

Liberal: Harry A. Blackmun

Moderate-liberal: David H. Souter

Ruth Bader Ginsburg

John Paul Stevens

Moderate-conservative: Anthony M. Kennedy

Sandra Day O’Connor