Stephen Breyer was nominated to serve as an associate justice of the Supreme Court of the United States by U.S. President Bill Clinton on May 17, 1994, after the Harry Blackmun's announcement of intent to resign his seat created a pending vacancy on the court. Per the Constitution of the United States, Breyer's nomination was subject to the advice and consent of the United States Senate, which holds the determinant power to confirm or reject nominations to the U.S. Supreme Court. After being his nomination was reviewed and favorably reported on by the Senate Judiciary Committee, Breyer was confirmed by the full Senate in a 87–9 vote on July 4, 1994.
Background Breyer In 1980, after President Jimmy Carter's nomination, Breyer was confirmed by the United States Senate as a U.S. Circuit Court judge by a vote of 80–10. 49 Democratic and 31 Republican senators voted in support of his confirmation. 4 Democratic and 6 Republican senators opposed his nomination. Ten senators (6 Democrats and 4 Republicans) did not vote.
In 1993, upon the recommendation of Orrin Hatch, President Bill Clinton considered both Breyer and Ruth Bader Ginsburg for the seat vacated by Byron White. Clinton ultimately appointed Ginsburg.
Breyer was considered ideologically to be a relative centrist.
Blackmun retirement On April 1994, Blackmun declared his intent to retire from the bench in a matter of months, creating a second Supreme Court vacancy for Clinton to fill. By the time of his retirement, Blackmun was considered to be the most liberal justice sitting on the court.
Search for a nominee
After Blackmun announced his retirement, Clinton took five weeks before selecting and announcing Breyer as its nominee. Breyer was not Clinton's first preference to fill Backmun's seat. He initially offered the nomination to George J. Mitchell, the Senate Majority Leader, who was retiring. Mitchell declined. Former governor of Arizona Bruce Babbitt, who had run for Democratic presidential nomination in 1988 and was serving as Secretary of the Interior, was then offered the nomination, but also declined, saying he was looking forward to spending more time with his wife, Harriet C. Babbitt (who was serving as the 12th United States Ambassador to the Organization of American States). Babbitt later said that had he been confirmed to the court, she would have been compelled to resign and that he did not want to cause that. Both Babbitts served in their positions to the end of Clinton's presidency in January 2001. Clinton next offered the nomination to Harriett Woods, a former lieutenant governor of Missouri and two-time Democratic nominee for U.S. Senate. Woods was serving as president of the National Women's Political Caucus. She also declined, and recommended Breyer and U.S. representative Barbara Jordan.Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court
Clinton then turned to Richard S. Arnold, a former Arkansas state representative and chief of staff to Arkansas Governor Dale Bumpers. President Jimmy Carter had nominated Arnold to the United States Court of Appeals for the Eighth Circuit, and the Senate confirmed him on February 20, 1980. He served until 1990. After that, he was serving as chief judge and a member of the Judicial Conference of the United States. Clinton had almost nominated Arnold before; he was the runner-up to Ginsburg.John Paul Frank; A. Leon Higginbotham Jr. (1993). "A Brief Biography of Judge Richard S. Arnold" Arnold told Clinton the day before the planned announcement of his nomination that due to serious "health concerns", he had to "defer this honorable nomination".
Initially, Clinton had felt Breyer lacked "soul and passion". But after heavy lobbying by Senators Ted Kennedy and Tom Harkin, Clinton met with Breyer again and decided to nominate him. Roughly thirty minutes after informing Breyer by phone that he would be the nominee, Clinton had his administration share word that Breyer would be the pick. A formal announcement press event with Clinton and Breyer was held on May 16 in the White House Rose Garden. The Senate formally received his nomination on May 17.
Michael S. Berman was assigned to serve as Breyer's "sherpa" (advisor tasked with guiding him through the rigors of their confirmation). He had previously played the same advisory role in Ginsburg's confirmation process.
Reception to nomination Support
Douglas I. Foy wrote to the Judiciary Committee on behalf of the Conservation Law Foundation environmental advocacy group, which he was the executive director of, to express support for Breyer's confirmation, writing:
Opposition While Breyer would ultimately face little opposition in Senate vote, his nomination was met by disappointment by more liberal wings of the Democratic party. Many liberals were disappointed by the nomination, believing it was out-of-step with earlier promised by Clinton to nominate, "someone with a big heart," and “someone of genuine stature and largeness of ability and spirit." Legal analyst Edward Whelan recalled in 2023,
The week after Clinton nominated Breyer, Stephen Reinhardt, a leading liberal federal judge, wrote an open letter to Breyer published in The Los Angeles Times in which expressed that Breyer had not been sort of judge Clinton had earlier promised to nominate. He urged him to "re-eximine" his judicial philosophy, and to ditch his technocratic manner for a more passionate approach. writing,
American Bar Association assessment As it routinely does for judicial nominees, the American Bar Association's Standing Committee on Federal Judiciary conducted an evaluation of the nominee's qualification. The review assessed integrity, judicial temperament, professional competence. The review did not weight political ideology or his views on specific matters that the court might hear. The committee unanimously gave Breyer its strongest affirmative endorsement of qualification, determining him to be "well qualified" on the basis of its evaluated criteria.
The committee's chair, Robert P. Watkins, described the lengths of the investigation it conducted to inform its assessment,
Watkins also noted that, as a resource, the committee also had the earlier report it had prepared in 1980 for Breyer's federal appeals court nomination. In 1980, a majority of the Committee had found him to be "qualified", and a substantial minority of the committee had unsuccessfully supported the strongest affirmative endorsement of his qualifications as "well qualified".
Watkins shared that in its new 1994 review, the committee found on the question of integrity,"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." On the question of his temperate, the committee found that, "Breyer's judicial temperament also meets the highest standards set by the Committee for appointment to the Supreme Court....Breyer clearly possesses and exhibits the highest level of judicial temperament." On the question of professional competence, the committee found, "Chief Judge Breyer's educational background amply prepared him for service on the Supreme Court of the United States". Watkins elaborated
Watkins further noted, "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 reading groups assembled for the review wrote in summary of the group's assessment,
The chairman of the other reading group wrote in summary of the group's assessment,
The later group's chairman personally expressed their own view on Breyer,
Breyer's testimony before Judiciary Committee (July 12–14)
After the nomination was sent to the senate, it was referred to the Senate Judiciary Committee for a review, as is the longtime standard procedure for such nominations. The committee was chaired by Senator Joe Biden of Delaware (a Democrat), with Senator Orrin Hatch serving as the committee's Ranking Republican member. By 1994, it had become standard practice for the Judiciary Committee to review nominations by holding hearings that included testimony from the nominee. Hearings on Breyer's were held conducted the course of four days, from July 12 through 15, with the first three days featuring testimony by Breyer, followed by a final day of hearings featuring testimony from panels of public witnesses. In his testimony, Breyer was subject to questioning by members of the committee.
The committee member who was by far the least friendly towards Breyer's nomination was Howard Metzenbaum, a liberal Ohio Democrat who had already announced that he would retire rather than seek reelection in the November election for his seat. Senator Metzenbaum grilled Breyer and offered criticisms of him during Breyer's testimony.
Discussion of Breyer's investment in Lloyd's A matter that was discussed multiple times was an investment Breyer held in Lloyds of London's liability insurance, and concern that it could pose a conflict of interest. On his first day of testimony, Breyer pledged that he would take any necessary steps that he could to end his association with Lloyds.
On July 14, Senator Metzenbaum brought up the case United States v. Ottati & Goss, arguing that Breyer should have recused himself from it but had failed to. The case involved the liability that polluters and their insurance companies held for cleaning up hazardous waste. Metzenbaum argued that since Breyer held an investment with Lloyd's of London that would be effected by a change in law on environmental liability of insurers, he should have recused himself. This matter posed what Neil Lewis of The Washington Post observed was the "only point of controversy" to arise during Breyer's days of testimony.
Metzenbaum was harsh in criticism of Breyer over this. Breyer argued he was certain that he had done nothing wrong in the matter. Reporters noted that, when facing heat from with Metzenbaum over, this the nominee appeared visibly frustrated for the first time in his confirmation hearings. After Metzenbaum characterized Geoffrey C. Hazard (an ethics expert and professor at the University of Pennsylvania Law School) as having labeled had called Breyer's decision to invest in liability insurance imprudent in a letter that had been submitted to the committee, Ted Kennedy interjected. Kennedy, a committee member who was Breyer's nomination's chief Senate proponent, spoke out in defense of Breyer, and asserted that Metzenbaum was offering a distortion of what Hazard had found. Kennedy noted that Metzenbaum's, characterization differed from what Hazard had actually written, with Hazard only going so far as to say that it was "possibly imprudent". Senator Hatch agreed with Kennedy that Metzenbaum's characterization differed from what had actually been written in Hazard's letter. Amid this heated exchange, Kennedy read the exact written remarks of Hazard into the record. Harzard had actually written, different from Metzenbaum's characterization
The week after the hearings, the editorial board of the Roanoke Times opined that while this matter drew the most attention of anything that came up during the confirmation hearings, "nothing damning emerged, and neither the judge nor senators said anything to cast doubt on the wisdom of this nomination. Controversy over Breyer's investments doubtless will fade." The Tampa Bay Times observed that,
The Tampa Bay Times also, however, opined that Metzenbaum's grilling of Breyer on this matter may ultimately have provided a worthwhile service in delivering a "consciousness raising" to the nominee, writing, Discussion of antitrust law