Senate’s Leaders Support Breyer; Others Grumble

The Senate’s top Democratic and Republican leaders on Sunday reaffirmed their support for Judge Stephen G. Breyer’s Supreme Court candidacy, but a few in the rank and file began to voice concern about his failure to pay Social Security taxes for a retired part-time domestic worker.

Overall, the reactions suggested that President Clinton could probably push Breyer’s nomination through the Senate, although he might encounter some of the controversy that he had hoped to avoid with his first Supreme Court nomination.

White House officials, watching for signs that Clinton’s top candidate is in trouble, said they plan to talk to more members of the Senate, which must confirm any nomination. “We’re going to listen to their concerns and we’ll discuss it more with them,” one aide said.

The official said that announcement of a Supreme Court nominee, considered imminent on Friday, now is expected to come “some time this week.”

Another White House official said that the President in recent days has returned to considering at least one other candidate, U.S. Circuit Judge Ruth Bader Ginsburg of Washington, D.C. Clinton discussed candidates Ginsburg, Breyer and Interior Secretary Bruce Babbitt twice in recent days with Sen. Dennis DeConcini (D-Ariz.), DeConcini told The Times on Sunday.

And Clinton has sought to convey the impression that his deliberations are still on track. “Nothing has changed, and I’ll have an announcement later,” Clinton told reporters during a stop at a bookstore Sunday.

A source close to the search said that Breyer, who is chief judge of the U.S. 1st Circuit Court of Appeals in Boston, was “exasperated” by the snag that developed Saturday with public disclosure that the taxes were not withheld.

Breyer was said to have realized in February, amid the outcry over failed attorney general nominee Zoe Baird, that he had not withheld taxes for the 81-year-old woman who has worked for his family one or two mornings a week since 1980. He has since paid about $3,000 in taxes and penalties to fulfill his obligation.

Baird’s nomination was abandoned after it was disclosed that she had employed illegal immigrants as domestic workers and had failed to withhold taxes. Clinton’s second choice for attorney general, Judge Kimba M. Wood, withdrew her name from consideration for similar reasons.

Breyer met Friday with the President in what seemed to be a final step toward his selection and was asked to remain in Washington over the weekend to write acceptance remarks.

Senate Majority Leader George J. Mitchell (D-Me.) and Minority Leader Bob Dole (R-Kan.) minimized the importance of the offense.

“I don’t think it’s disqualifying,” Dole said on CNN’s “Newsmaker Sunday” program. “I agree with the White House. I would hope they move forward with the Breyer nomination.”

Mitchell told interviewers on ABC’s “This Week with David Brinkley” that he did not believe the Breyer tax question “by itself is disqualifying.”

Sen. Orrin G. Hatch (R-Utah), ranking minority member of the Judiciary Committee--which gets first crack at court nominations--said it was unclear under Internal Revenue Service regulations whether the worker was an “independent contractor” for whom withholding of taxes was not necessary.

“As one who supported Zoe Baird, I do not think this is disqualifying,” he said.

But others said that, after Baird’s failed bid, Breyer’s selection could lead to criticism that the Administration has a different standard for women than for men. “It raises some problems, doesn’t it?” asked Sen. Tom Harkin (D-Iowa) on NBC’s “Meet the Press.”

Failure to pay Social Security taxes also knocked a male candidate out of contention for a top post. Charles F. C. Ruff, a Washington lawyer and former Watergate special prosecutor, was dropped as a candidate for deputy attorney general because he had not paid Social Security taxes for an elderly domestic employee. As in the Breyer case, Ruff said he did not realize that he owed taxes on someone above retirement age.

DeConcini said he would be hard-pressed to vote for Breyer if it meant applying different standards.

“To me, we have to apply the same standards to Judge Breyer--and I like him very much--as were applied to Wood, Baird and Ruff,” he said. “I must caution the White House, don’t expect this senator to apply another standard.

“We have gotten ourselves into an irretrievable situation here, starting with Baird.”

Sen. Charles E. Grassley (R-Iowa), a Senate Judiciary Committee member, said lawmakers would be watching public reaction, which he said has not yet fully crystallized.

“If there’s a public outcry anywhere near that over Zoe Baird’s case, I think he’s a dead duck,” Grassley said in a telephone interview from Iowa. “It’s difficult for people at the grass-roots level who pay their taxes to be able to comprehend that people of a higher status shouldn’t have to do it. It’s also difficult for them to understand an outstanding lawyer not knowing what the law is.”

Sen. Patrick J. Leahy (D-Vt), another member of the Judiciary Committee and a Breyer supporter, also saw the risk of imposing a double standard.

Some had speculated that women’s groups could be outraged if Breyer were selected despite problems with a domestic worker, whereas Baird and Wood were not. But leaders of several women’s groups seemed to agree Sunday that the infraction should not be disqualifying.

“All other things being equal, I would say this should not be a bar,” Judy Lichtman of the Women’s Legal Defense Fund said. “I don’t condone illegal behavior, but this law has seemed to be observed in the breach. I don’t think it should operate as a trap door to keep out people who would otherwise be well-qualified for public service.”