Breyer's Public Life Offers Few Clues to Private Beliefs : Supreme Court: Though ambitious, nominee has tried to have practical impact. But leanings are unclear.

By DAVID LAUTER

May 31, 1994 12 AM PT

TIMES STAFF WRITER

WASHINGTON — When friends and colleagues of Judge Stephen G. Breyer search for anecdotes about him, what they recall is his career advice.

Kathleen Sullivan, now a law professor at Stanford University, was starting as a member of the Harvard Law School faculty when she met Breyer. At a faculty reception, Breyer urged her to get involved in “something like the federal sentencing commission--something practical.”

“We need intellectuals to get involved in projects that have an impact on people’s lives,” Sullivan recalls Breyer telling her.

To Akhil Amar, who worked as a law clerk in Breyer’s judicial chambers and now teaches at Yale Law School, the judge offered a more direct suggestion: After listening to his young clerk’s plans for a series of law review articles, Breyer counseled him that to really have an impact, he should write a book. And he should not wait too long, Breyer added. “I really wanted to have a book before I was 40,” Amar recalls him saying.

The advice, as Breyer told those he counseled, was autobiographical--reflecting twin elements of his life that explain why Breyer now stands on the edge of an all-but-certain confirmation to the nation’s highest court: a strong desire to use his formidable legal talents to make a practical impact beyond Ivory Tower theorizing, coupled with a keen appreciation of the quickest, surest routes toward his own advancement.

“Every move he has made has paid off,” said his friend Alan M. Dershowitz, a Harvard Law School professor and noted criminal defense lawyer. “Steve just never makes a mistake.”

But while Breyer’s path has been so smooth and steady as to appear almost effortless, it has provided few clues to answer the ultimate question: If he is to become a leader of the Supreme Court, as President Clinton hopes, where would Breyer take it?

Breyer has become well-regarded as an expert on federal regulatory law, about which he has written influential articles and books. But by contrast with several past Republican nominees, who had staked out clear ideological positions before being chosen, Breyer has made almost no public comment on constitutional law or on such controversial topics as abortion or privacy rights or affirmative action.

“Steve is a lot like President Clinton in many ways. He’s a pragmatist, a centrist with an enormous array of friends,” said Dershowitz.

In pursuit of his goals, Breyer has traveled a route from Stanford to Oxford to Harvard to a Supreme Court clerkship, back to Harvard, to the staff of the Senate Judiciary Committee and then to the federal appeals court bench--mixing academic work with immersion in practical politics.

“Steve has the same philosophy his father had,” said his aunt, Shirley Black, whose brother, Irving Breyer, was a prominent attorney and public servant in San Francisco, counsel for nearly 40 years to the city school board. “It’s doing the most good for people. If you want to help people, you should try to gain power.”

Along the way, he has impressed and charmed scores of people scattered through the upper reaches of American law and politics, from the late Justice Arthur M. Goldberg, who used to tell friends he hoped to see his former clerk one day don a justice’s robes; to Sen. Edward M. Kennedy (D-Mass.), for whom he worked in 1974-’75 and again in 1979-’80 as a top Judiciary Committee aide and who then secured an appeals court judgeship for him in the Jimmy Carter Administration’s closing days; to such conservatives as Sens. Orrin G. Hatch (R-Utah) and Strom Thurmond (R-S.C.), whose support for him has virtually guaranteed a smooth confirmation.

What he has not done, conceded another longtime friend, Peter Edelman, is live a life that makes “good copy.”

Breyer’s biography includes no epic struggle, none of the up-from-obscurity morality tale that so delights (and sometimes deludes) American audiences. At home in Cambridge, Mass., in a comfortable house not far from the Harvard campus, Breyer lives the life of a conventional and successful member of the American intellectual and policy elite--enjoying fine food, wine and conversation, rooting for his hometown baseball and basketball teams, running and riding a beat up, one-speed bicycle to stay fit, driving a dark blue Volvo station wagon, sending his three children to Harvard, Stanford and Yale.

In his 55 years of life and 30 years as a lawyer, a law professor and a judge, Breyer “has never represented the underdog and never been an underdog,” said a prominent Washington attorney and friend who is otherwise highly complimentary of the nominee.

Despite the lack of drama in his life, Breyer could become one of the most influential public figures of his generation. Many lawyers who study the court believe Breyer has a strong chance of being far more than merely one vote among nine.

The current court, in the opinion of most lawyers and academics who study it, notably lacks a leader. Chief Justice William H. Rehnquist and Justice Antonin Scalia, who could exercise leadership by virtue, respectively, of position and intellectual prowess, stand too far toward the judicial right to do so effectively. The justices in the court’s conservative center--David H. Souter, Sandra Day O’Connor, Anthony M. Kennedy--have shown little ability to lead.

By contrast, of the nine men and two women placed on the court in the last generation, only Scalia and, perhaps, Clinton’s other nominee, Ruth Bader Ginsburg, come close to matching Breyer’s record of legal scholarship, intelligence and achievement.

At a time when many federal judges complain frequently about the crushing burden of their workloads, Breyer was able to handle the work of an appeals court judge while still teaching at Harvard, playing a central role on the U.S. Sentencing Commission and educating himself about architecture to guide the construction of a new federal courthouse in Boston.

Moreover, unlike Ginsburg, who often has appeared to associates as distant, shy or aloof, Breyer is gregarious and charming. His experiences heading a Senate staff, on the court of appeals and on the sentencing commission demonstrate that he is a highly effective small-group politician who inspires genuine affection on the part of those who have worked under him and loyal friendship from those he has served.

About the only open opponent to his nomination so far has been consumer advocate Ralph Nader, who objected that Breyer has sided with big business too often in antitrust cases and has been too skeptical of federal regulatory efforts. But in a telling example of the network of Breyer’s friendships, Nader’s top lawyer, Alan Morrison, is a close friend of the nominee’s who has defended Breyer’s views.

Breyer’s judicial opinions on antitrust prove little. He is clearly no economic populist, but the Supreme Court’s conservative rulings on antitrust cases over the last two decades give lower court judges relatively little leeway.

But his views on regulation reveal more about him. Breyer’s writings show a desire to bring order to messy legal problems and an underlying belief, reflective of the California progressive tradition in which he grew up, that government programs are subject to improvement by careful, expert thought.

Breyer’s work on regulation also reveals his skill at practical politics. As an aide to Kennedy, he played a key role in winning approval of federal airline deregulation, though he and Nader, who was an ally in the effort, later criticized the Ronald Reagan Administration’s unwillingness to use antitrust laws to police the deregulated airlines.

In his writings, Breyer has objected to the wholesale efforts at deregulation pushed during the Reagan Administration but also criticized the weaknesses of many current regulatory programs.

Last year, delivering Harvard’s prestigious Oliver Wendell Holmes lectures, he described system-wide problems of regulation. In particular, he objected to the tendency of regulators to spend 90% of their energy cleaning up the “last 10%” of a problem. He also described the difficulty of allocating scarce regulatory resources rationally given the way the public and Congress overreact to some minor risks--he cited intact asbestos in existing buildings as a prime example--while underemphasizing more serious ones.

Breyer’s desire to bring order to complex subjects, as well as his ability to bridge ideological gaps, also can be seen in his work on the federal sentencing commission, a body set up in the early 1980s to end disparities in sentences imposed by different federal judges for similar crimes.

Originally, many members of the commission believed they could devise formulas to cover every possible circumstance that might influence a sentence. In practice, however, the effort quickly bogged down amid disagreements over attempts to weigh various types of heinous acts, as well as ideological differences.

Breyer convinced both sides to drop their more ambitious goals. Instead, relying on a statistical study of some 10,000 sentences handed down by federal judges, he constructed a formula that eliminated wide disparities by largely ratifying existing average practices.

While that experience provides a clear picture of his leadership abilities, neither his appeals court opinions nor his scholarly writings indicates much about Breyer’s views on the great constitutional issues that attract attention to the high court.

That absence of comment has made some liberals uneasy about Breyer’s imminent ascension to the high court, particularly given his endorsements from such prominent conservative voices as Hatch and the Wall Street Journal editorial page.

Clinton’s choice has caused more than a little behind-the-scenes grumbling from Democratic liberals who have complained that, after years in which Republican presidents carefully sought out strict conservatives for the court, President Clinton has now chosen two justices, Breyer and Ruth Bader Ginsburg, who joined the court last year, who are known for moderation.

Breyer’s friends have responded in recent days, arguing that as a justice he will emerge as a newly liberated champion of an updated form of judicial liberalism--one who will uphold strong protections of civil rights and civil liberties but be more skeptical about the ability of federal judges to improve society than was the case during the court’s liberal era under former Chief Justice Earl Warren.

Now that Breyer has achieved his ultimate goal, argued Dershowitz, “all the constraints are off. There’s nothing else he wants in life.”

A similar prediction is made by Edelman, who serves as counselor in the Department of Health and Human Services and who, along with his wife, Marian Wright Edelman, who heads the Children’s Defense Fund, is also a longtime friend of President Clinton and First Lady Hillary Rodham Clinton.

“He’s very deeply committed to civil rights issues,” Edelman said, citing Breyer’s work handling civil rights measures as chief counsel to the Senate Judiciary Committee in the late 1970s.

Others, however, make more tentative judgments. John Hart Ely, former dean of Stanford Law School who now teaches at Yale, clerked for Earl Warren the year Breyer clerked for Goldberg. The two then taught at Harvard together for 10 years and served in Washington together in the mid-1970s.

“I’m guessing he’ll be protective of civil liberties, but that’s an inference from the fact that he’s generally a fairly liberal Democrat,” Ely said. “The only thing we ever discussed at length was deregulation.”

Another friend, Philip B. Heymann, who until recently was the Administration’s deputy attorney general, offers a compliment that not all of Breyer’s liberal doubters will find reassuring--likening Breyer to the late Justice John M. Harlan, who was by many accounts the most distinguished justice of the last two generations, but who also dissented from many of the Warren court’s liberal rulings. Like Harlan, Breyer has strong views, but also a deep intellectual honesty that allows his views to affect, but not decide, his judicial decisions, Heymann said.

“You can’t predict his positions, but you can detect his opinions,” he says.

Breyer’s steady march toward the nation’s highest court began in San Francisco, where Irving Breyer and his wife, Anne, raised Stephen and his younger brother, Chuck, who is also now a lawyer, in a modest, two-story home in an upper-middle-class neighborhood in the shadow of the University of San Francisco. Their street was bordered on one side by the university and the other by a private college for women, symbolic, perhaps, of the place that education took in the family’s list of priorities.

Education came easily to the young Breyer. In addition to his classes, he insisted that his parents, who were Jewish but religiously unobservant, send him to religious school on Sundays, Chuck Breyer recalled. As a college student, he later taught religious school at a local synagogue.

But Anne Breyer pushed constantly for him to be “well-rounded,” his brother recalled, chiding that--if he did not put his books down and go outside--he would end up like her brother, Leo, a curmudgeonly man who taught for a brief time at Radcliffe College and then retired to a book-lined study for a life of reading and avoiding others.

Mrs. Breyer insisted that her son take part in sports, although he was not particularly good at them, and attend camp, although once there his tender feet quickly won him the nickname Blister King.

Nonetheless, in a pattern that would become typical of his life, Breyer persevered and excelled, becoming an Eagle Scout at 12. “He wasn’t very popular but he was well known as the troop brain,” recalled his Scoutmaster, Bob Anino.

The Breyer boys attended the city’s prestigious Lowell High School, the elite academy of the San Francisco public school system. There, Steve Breyer took an active part in the school debate team, competing against the likes of future Gov. Edmund G. (Jerry) Brown Jr., who attended rival St. Ignatius Loyola High School. In 1955, Breyer graduated with only one B marring an otherwise straight-A record. He was voted “most likely to succeed.”

“He was one of the brightest kids in my 30 years at Lowell,” said Paul Lucey, his economics and social science teacher.

Breyer wanted to go on to Harvard but bowed to the wishes of his parents, who feared, again, that he would become too bookish, and attended Stanford instead. After graduating, he won a Marshall Scholarship to attend Oxford, where he picked up a fascination with economics, then went on to study law at Harvard, where he became an editor of the law review and quickly developed a reputation as one of the school’s bright lights.

In the spring of 1964, Breyer received word that Goldberg had selected him as a clerk for the high court term beginning in October.

Historians recall the 1964-65 term primarily because of Griswold vs. Connecticut, in which the court for the first time recognized a constitutional right to privacy in sexual matters. The court held that states could not forbid married couples from buying or using contraceptives, a ruling that laid the grounds for Roe vs. Wade a decade later that guaranteed women the right to abortion.

Breyer, according to fellow clerks, helped Goldberg draft his opinion. But the opinion’s central idea that a right to privacy could be grounded in the Ninth Amendment, which protects rights not listed elsewhere in the Bill of Rights, was one that Goldberg had toyed with earlier and provides little evidence of Breyer’s views.

Over the next several years, Breyer worked in the Justice Department’s antitrust division. He also met the woman who in 1967 became his wife. She is the former Joanna Hare, an Englishwoman who then was working as an assistant in the Washington office of London’s Sunday Times.

Joanna Breyer, now a psychologist at Boston’s Dana Farber Clinic, was the daughter of Lord John Blakenham, a British political figure who was a leader of Britain’s Conservative Party. The marriage contributed heavily to Breyer’s current wealth. According to his financial disclosure forms, which report assets in broad categories, the couple has at least $3.2 million and perhaps as much as $6.7 million.

From Washington, Breyer returned to Harvard to teach regulatory law but he continued to visit the capital, working for several months in 1973 on the Watergate prosecutions, joining two other Harvard colleagues as aides to special prosecutor Archibald Cox. In 1974, he accepted Kennedy’s offer to head the staff of the Judiciary Committee’s subcommittee on administrative law. In 1979, he returned to Washington again, this time as the Judiciary Committee’s chief counsel.

That background, plus his years on the bench, made Breyer an immediate candidate for the “short list” of high court nominees when Clinton returned the White House to Democratic hands.

Indeed, when he arrived in Washington last year for a luncheon interview with Clinton, in pain from a bicycle accident in which he had broken a rib, White House officials and Breyer’s friends believed the Supreme Court job that was then open would be his. That afternoon, as he stretched out on the floor of White House Counsel Bernard Nussbaum’s office to rest, officials told him to delay his return to Cambridge and begin preparing an acceptance speech.

But, as Clinton pondered his choice, Breyer’s lack of an engaging life story--a factor that has always had strong appeal to the President--did him in. Clinton opted instead for Ginsburg, a pioneer in women’s rights whose biography offered more excitement.

Breyer, disappointed, returned to Cambridge but characteristically avoided any negative comment about Clinton’s selection and conspicuously attended Ginsburg’s swearing-in ceremony.

One year later, with the White House already finding that it had more excitement than it could handle, a nominee with a conventional background and broad support in the Senate seemed newly appealing. Breyer’s time had come.

Times staff writer Richard A. Serrano contributed to this story from San Francisco.