Clinton Picks Moderate Judge Breyer for Supreme Court Spot : Judiciary: President says the scholarly nominee has 'proven that he can build an effective consensus.' The federal jurist has wide bipartisan support in the Senate.

By PAUL RICHTER

May 14, 1994 12 AM PT

TIMES STAFF WRITER

WASHINGTON —

Rejecting candidates who appeared to be more controversial, President Clinton on Friday chose federal Judge Stephen G. Breyer, a scholarly centrist jurist with bipartisan support, to fill his Administration’s second vacancy on the Supreme Court.

In a hastily convened press conference, Clinton, absent the nominee who had been informed too late to be there, hailed the 55-year-old Boston jurist as a candidate of “excellence” with a keen mind, respect for civil rights and the ability to explain the law to average Americans.

He said that Breyer, who would replace retiring Justice Harry A. Blackmun if confirmed by the Senate, has “proven that he can build an effective consensus. . . . Without dispute, he is one of the outstanding jurists of our age.”

Breyer has sat on the U.S. 1st Circuit Court of Appeals in Boston since 1980 and was named chief judge in 1990. A runner-up in last year’s Supreme Court search, Breyer earlier was chief counsel to the Senate Judiciary Committee under Sen. Edward M. Kennedy (D-Mass.).

The Rose Garden announcement ended a tortuous 37-day search in which Clinton apparently had been ready, in recent days, to choose Interior Secretary Bruce Babbitt or federal appeals Judge Richard S. Arnold of Arkansas.

But Clinton said he “couldn’t afford to lose” Babbitt from his sensitive Cabinet post. And, he said, he could not risk choosing his old Arkansas friend until questions about his nearly two-decades-old cancer were resolved.

With enthusiastic support from Republicans, Breyer’s nomination is likely to sail through the Senate confirmation proceedings, sparing Clinton any distracting controversy as his health reform bill wends its way through Congress.

But the selection leaves Clinton vulnerable to criticism that he yielded to pressure from Senate conservatives who had expressed unhappiness at the prospect that the more liberal Babbitt could be chosen. Indeed, some aides had been pushing Clinton to choose Babbitt and prove that he would not allow the opposition of Sen. Orrin G. Hatch (R-Utah), ranking minority member of the Senate Judiciary Committee, or other conservative Republicans to influence his Supreme Court choices.

The announcement brought plaudits from conservatives and hesitation from some liberals. Sen. Strom Thurmond (R-S.C.), for example, called Breyer an “excellent choice,” and he drew praise as well from Hatch and Sen. Alan K. Simpson (R-Wyo.), both Judiciary Committee members.

But Sen. Howard M. Metzenbaum of Ohio, a liberal Democrat, said that he had concerns about Breyer’s “moderate to conservative” record. “He’s been more concerned about the situation of big business” and less about that of smaller companies and the less well off, Metzenbaum said.

Kennedy, Breyer’s chief advocate in the Senate, called the nomination “outstanding.” And he added: “Judge Breyer is a brilliant legal scholar with a profound understanding of the law and its impact on the lives of real people.”

Breyer is said to have given up a promising political career for a life on the bench. He has been described as skilled in forging consensus. As majority counsel to the Judiciary Committee, he won support from members of both political parties. Indeed, Breyer was confirmed to the federal court--after the defeat for reelection in 1980 of President Jimmy Carter, who had nominated him--because he had become so well-liked by committee conservatives.

Lawyers who have worked with him in New England praise him as quick, scholarly and nonpartisan, if a bit imperious. Financial disclosure forms show that he owns several million dollars in stocks and bonds. The Supreme Court annual salary is $164,100.

Although Breyer’s legal credentials may be unassailable, he is not the nationally respected political figure that Clinton once said he wanted to appoint to ensure that social realities are represented on the court. Clinton’s first choice last year for a previous court opening was New York Gov. Mario M. Cuomo, and this year he first sought Senate Majority Leader George J. Mitchell (D-Me.). Both men withdrew their names from consideration.

With a scholarly manner that Georgetown University law professor Paul Rothstein called “almost egghead,” Breyer probably also is not the person with a common touch and “big heart” that Clinton had said he was seeking.

Breyer’s selection is likely to disappoint minorities, in particular Latinos, who had been hopeful that one of their number might be chosen for the post. Federal Judge Jose A. Cabranes of Connecticut once was said to be a leading candidate but he was not among the final three, and some liberal advocates have complained that his name on short lists of prospects was “window dressing.”

Clinton’s finalists were all white males from Harvard, a fact that will make it far harder for the diversity-conscious Clinton to choose anyone but a minority if he receives a third opportunity to name a justice. Some court watchers believe that Justice John Paul Stevens may retire next year.

The choice of Breyer also may lead to criticism that Clinton had raised the expectations of other candidates. Such criticism was directed at Clinton last year when he passed over Breyer--after a highly publicized Oval Office meeting--in favor of Justice Ruth Bader Ginsburg.

Clinton seemed to be trying to prevent such comments by lavishly praising Babbitt and Arnold in his Rose Garden press conference. As a former governor, Babbitt would bring to the court “the responsibility and discipline of service in public life,” and a feel “for life at the grass roots,” the President said.

He cited Arnold’s reputation, noting that 100 federal judges, a full eighth of the federal bench, had written him to endorse Arnold’s character. And he said if he had another chance to select a Supreme Court justice, “I will consider Judge Arnold at the top of the list.”

As Clinton increasingly focused on the issue this week, aides said that he first leaned toward Babbitt, then toward Arnold but only on Friday--within two hours of the announcement--made up his mind to name Breyer.

Between Monday and Wednesday, Clinton came close to naming Babbitt and many White House aides were enthusiastic. But at a meeting in the White House residential quarters later it became clear that “the President wasn’t there,” said one aide.

Aides acknowledged that there was some concern that a Babbitt confirmation proceeding “wouldn’t be completely clean.” But they insisted the consideration was far less important than concerns that it would be hard to replace Babbitt at Interior, a post that Clinton considers key to his Western political strategy.

The aide played down suggestions that the selection would draw criticism that Clinton was not willing to fight for what he wanted.

After the Interior secretary had been ruled out, Chief of Staff Thomas (Mack) McLarty took the President aside in a White House kitchen, and the pair decided to consider Arnold, an old friend and the President’s “sentimental favorite.”

But a review of the Senate revealed that the selection of Arnold would stir unhappiness among a number of women Democratic senators--Dianne Feinstein and Barbara Boxer of California, Barbara A. Mikulski of Maryland, Patty Murray of Washington and Carol Moseley-Braun of Illinois. Some women’s groups and abortion rights groups also opposed Arnold.

Most important, according to aides, was the question of Arnold’s cancer. On Thursday, McLarty asked for additional reports on the prognosis for the disease, for which Arnold is soon to receive additional treatments.

The final decision was made by the President at about 4 p.m. Friday, after he spent about half an hour reflecting by himself.

Last year, Clinton met Breyer in the Oval Office, where, aides said later, the “chemistry” between them had been bad. But aides told Clinton this year that the problem may have been only that Breyer was too ill from a long railroad trip from Boston and a punctured lung he had suffered in a bicycle accident not long before, to give the meeting all of his concentration.

After the decision Friday, Clinton called Breyer, who was “thrilled,” according to an aide. Clinton suggested that Breyer visit the White House with his wife this weekend, telling him that they could stay in the Lincoln Bedroom. Breyer is expected to attend a more formal Rose Garden ceremony with the President Monday.

From Harvard to High Court Nominee

Stephen G. Breyer is a highly respected Boston jurist with a background in teaching. If confirmed, he will replace retiring Justice Harry A. Blackmun. Though Breyer is considered a moderate, it is unclear whether his opinions would lean toward the liberal or conservative side.

PROFILE

Birthplace: San Francisco

Age: 55

Education: Stanford University, Oxford University, Harvard Law School.

Experience: U.S. 1st Circuit Court of Appeals judge since 1980, former professor at Harvard Law School.

CURRENT SUPREME COURT MAKEUP

Liberal: Harry A. Blackmun

Moderate-liberal: David H. Souter

Ruth Bader Ginsburg

John Paul Stevens

Moderate-conservative: Anthony M. Kennedy

Sandra Day O’Connor