Justice Stephen Breyer

On Friday, the National Archives unsealed a fifth batch of Clinton Administration presidential papers. The documents were originally released by the William J. Clinton Presidential Library in Little Rock. Let’s get these pesky papers out of the way before Hillary Clinton, author of a new memoir (affiliate link), launches her presidential bid.

The latest papers contain some juicy tidbits for legal nerds. For example, as noted in Morning Docket, then-Judge Stephen Breyer got dissed as a “rather cold fish” while being considered for a Supreme Court seat (the seat that ultimately went to Justice Ruth Bader Ginsburg).

The papers contain candid assessments of Justices Breyer and Ginsburg, as well as other fun nuggets. Here are some highlights:

1. Ginsburg v. Breyer: A Head-To-Head Comparison

When Justice Byron White announced his retirement from the Supreme Court in 1993, two top contenders emerged: Judge Stephen Breyer of the First Circuit and Judge Ruth Bader Ginsburg of the D.C. Circuit. Both were renowned appellate judges (and feeder judges back in the day). But no matter how high you rise, you can always be compared to someone else. Here’s how Joel Klein, then a deputy White House counsel, compared the two:

In terms of craft, Judge Breyer would be on everyone’s list of the five most qualified judges on the federal courts of appeals, while Judge Ginsburg would be on most people’s lists of the five best and almost everyone’s list of the 10 best.

Interesting — so Breyer had the edge in terms of judicial craft (at least according to one observer). Klein added that “Judge Ginsburg’s work does not have the obvious brilliance that Judge Breyer’s work does and her opinions tend to be less pedagogical and, in that sense, less remarkable.”

But craft and brilliance aren’t everything:

Overall, I would think that Judge Ginsburg more closely meets the President’s articulated standards for the Supreme Court than does Judge Breyer…. [Her] work has more of the humanity that the President highly values and fewer of the negative aspects that will cause concern among some constituencies.

You can read Klein’s full memo, dated June 11, 1993, here. (Klein, of course, went on to have an amazing career not just in law but in government, serving as New York City School Chancellor.)

2. Judge Breyer: A “Rather Cold Fish”

Then-Judge Breyer got a mix of both praise and putdowns when being vetted as a SCOTUS nominee. Joel Klein viewed Breyer as a smarter cookie than Ginsburg, but other vetters saw Breyer as rather uninspiring. In a June 7 memo to Klein, Tom Perrelli and Ian Gershengorn — then at Jenner & Block, which had been tapped by the White House to help out on vetting — wrote the following about Breyer:

There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish. There is nothing in his legal writing that suggests innovation, except perhaps in a few areas of particular interest. Indeed, he shows a distinct lack of interest for most areas of substantive law, including those areas of greatest interest to liberals.

But let’s step back and think about this in practical terms for a sec. If Breyer had shown more “heart and soul” and “innovation” in his opinions, especially in “areas of greatest interest to liberals,” would he have ever been on a SCOTUS shortlist in the first place? It’s been a long time since a true super-liberal — like Justice Brennan, or Justice Marshall, or Justice Douglas — has sat on the Court.

At the same time, even if then-Judge Breyer wasn’t a bleeding heart, this assessment from the vetters was probably a bit off:

Conservatives will be thrilled if Judge Breyer is appointed. He cannot be described as liberal and more likely falls on the conservative side of moderate.

Since joining the Court in 1994 (after Justice Harry Blackmun retired), how has Breyer performed? Occasionally he sides with conservatives — SCOTUS watcher John Elwood once nicknamed Breyer the “crossover sensation” — but one would hardly say conservatives have been “thrilled” by SGB’s tenure. Rather, as Jess Bravin noted, “Justice Breyer has been a reliable liberal vote on ideologically charged issues, including same-sex marriage, abortion rights and campaign-finance.”

What do Justice Breyer’s vetters have to say for themselves today? Gershengorn said that “I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice.” Perrelli told Bravin that the memo shows “why you don’t have second-year associates writing evaluations of potential Supreme Court nominees.” (Perrelli was a Jenner junior associate and Gershengorn was a summer associate — yes, a summer — at the time they wrote the memo. Who says summer associates don’t get real work?)

It isn’t shocking that Perrelli and Gershengorn are disavowing their memo today. Perrelli is a former top Justice Department official who’s now a partner at Jenner, which has one of the top Supreme Court practices, and Gershengorn argues regularly before Justice Breyer and his colleagues as principal deputy solicitor general.

3. Judge Breyer’s “Nannygate” Problem

A slew of Clinton Administration nominees encountered troubles related to household employees, primarily about immigration status or Social Security taxes. Apparently Justice Breyer was one of them, according to Tony Mauro and Todd Ruger:

A memo in the Clinton files suggests that White House officials were concerned in 1993 about how the Senate Judiciary Committee would react to reports that Breyer had failed to pay Social Security taxes for a household employee. Breyer paid the taxes retroactively when he became aware of his omission.

Luckily for Breyer, who had served as counsel to the Senate Judiciary Committee before becoming a First Circuit judge, the senators on the committee generally had an “NBD” reaction when contacted about it by White House staffer Ron Klain.

4. An Elena Kagan Cameo

Many future judges and justices serve stints in the White House counsel’s office. When presidential papers get released, it’s fun to go through them and see what these young legal superstars thought and wrote at the time.

As noted by Mauro and Ruger, well before her ascension to the high court Elena Kagan was parsing SCOTUS rulings as a White House staffer. In the 1996 memo, Kagan analyzed the messy Seminole Tribe case, which some of you may (reluctantly) remember from your Con Law class. In her memo, she complained about the actions taken by a “a bare majority of the Court” — which she can still do today, but for a much bigger audience.

You can check out some of the newly released Clinton papers here. Feel free to note in the comments anything juicy you find. Enjoy!

‘Cold Fish’ Memo on Justice Breyer Surfaces in Clinton Papers [Wall Street Journal]
Newly Released Clinton Papers Dish on Ginsburg, Breyer [National Law Journal]
5th Batch of Clinton-Era Papers Is Released [New York Times]
Presidential Papers [William J. Clinton Presidential Library]


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