Clinton Nominee for High Court Seen As Sharing Jewish Concerns

Judge Stephen Breyer, President Clinton’s nomince for the U.S. Supreme Court, might not end up fulfilling what traditionally has been thought of as a “Jewish liberal’s role” on the bench.

But the nomination, if confirmed by the Senate, will likely be good for Jewish interests, say legal experts and those who know the highly respected judge.

Breyer, 55, who currently serves on the 1st Circuit U.S. Court of Appeals in Boston, was selected by Clinton last Friday evening to replace retiring Justice Harry Blackmun.

It is unlikely that Breyer will carry on the legacy of Blackmun, who is currently the high court’s most liberal justice, Professor Morton Horowitz, a former colleague of Breyer’s at Harvard Law School, told The New York Times.

But Breyer’s brilliance and his knack for building consensus rather than dissent will outweigh any such unfulfilled expectations, legal scholars say.

And Breyer could be expected to “look in a liberal direction,” said his colleague and friend of 32 years, Harvard Law School Professor Alan Dershowitz.

Both Dershowitz and Breyer clerked for another Jewish justice, Arthur Goldberg.

If confirmed, Breyer would become the second Jewish justice on the nine-member bench, and the second appointed by Clinton, following his selection last year of Justice Ruth Bader Ginsburg.

And Breyer is Jewish in more than name only. He does participate in Jewish religious life, Dershowitz said Sunday.

“I know that he has come to ADL dinners,” said Dershowitz, recalling Breyer’s attendance at an Anti-Defamation League dinner where Dershowitz was honored several years ago.

“I know he does a seder,” Dershowitz said. And “he has been to our break fast” after Yom Kippur. “He comes and he identifies with Jewish activities. I have seen him at Harvard Hillel services on Yom Kippur,” he added.

CONCERN FOR JUSTICE, LIBERTY

Dershowitz, a colleague of Breyer’s at Harvard Law School who has also argued cases before him, strenuously opposes having a so-called “Jewish seat” on the high court. But he believes nevertheless Breyer will be “good for the Jews.”

“Steve shares, I think, many Jewish concerns for justice and liberty,” Dershowitz said. “He is not going to rule theologically as a Jew. But his upbringing surely is relevant.”

Breyer was born and raised in San Francisco, attended Lowell High School there and got an A.B. degree from Stanford University and a B.A. from Oxford University in England, where he was a Marshall scholar. He returned to this country and received his LLB from Harvard.

He is married to a British woman, Joanna Hare, a non-Jew and daughter of a former Tory parliamentarian, Lord John Blankenham. The couple have two daughters and a son.

Despite being intermarried, Breyer remains tied to his Jewish roots, Dershowitz said. In fact, he remarked, Breyer could be even more pro-Jewish than Ginsburg.

“The one thing that distinguishes him from Ginsburg,” said Dershowitz, “is I believe she bends over backward to show that she is fair, not biased in favor of Jews, as in the (Jonathan) Pollard case.

“I think Steve would have come out the other way on the Pollard case,” said Dershowitz.

Ginsburg was one of a panel of three appeals court justices that rejected Pollard’s contention that the government had violated a plea bargain by seeking a life prison sentence.

‘A KEEN SENSE OF FAIRNESS’

“Steve has a keen sense of fairness,” Dershowitz said.

He said that although Breyer is “not coming to the court as a liberal, he is coming to the court as a centrist, and I think he will look in a liberal direction.”

“He is somebody who knows how to bring people together. He is a master at achieving consensus and using his intellect in a subtle and constructive way.”

Dershowitz also believes Breyer will sail through his congressional hearings.

But Dershowitz said he regrets “that Justice Goldberg did not live long enough to see one of his clerks serve on the Supreme Court.”

Should Breyer join Ginsburg on the bench, it would not be the first time there were two Jewish justices serving concurrently.

This occurred with Justices Louis Brandeis, who served from 1916 to 1939, and Benjamin Cardozo, who served from 1932 to 1938.

Dershowitz could not say where Breyer stands on church-state cases, as he ruled on only one such case. But he said he is “convinced that he will be pro-choice” on the abortion issue and “generally favorable to civil rights.

“On the other hand,” Dershowitz said, “I have no idea where he would stand on affirmative action or quotas.

“He is not somebody who is full of surprises,” Dershowitz said. “You can read his opinion and understand where it came from.”