Memo Shows Clinton Team Thought Justice Breyer 'a Cold Fish'

Saturday, 07 Jun 2014 09:28 AM

By Sandy Fitzgerald

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The verdict was severe in 1993 against then-federal appeals court Judge Stephen Breyer by staffers for President Bill Clinton vetting him for the Supreme Court post he has held for the past 21 years, a memo released from the Clinton Presidential Library reveals.

"Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice," wrote current Deputy Solicitor General Ian Gershengorn, who was then just a graduate from Harvard Law School, and attorney Tom Perrelli in a in a memo to White House lawyer Joel Klein, reports The Wall Street Journal.

The memo, was released Friday along with 2,000 pages of other material that had previously been withheld for legal reasons.

"There is very little heart and soul in Judge Breyer's opinions," the memo says. "Quite clearly, he is a rather cold fish."

The memo also slams Breyer for his "dearth of commentary about the substantive issues at stake," which the attorneys said indicated he has no interest in the area of civil rights, so it "is all but impossible to imagine him being an innovator on the Supreme Court on these issues."

And while Breyer has over the years been on the court's liberal side, voting on issues including same-sex marriage, abortion rights and campaign finance issues, Gershengorn and Perrelli said they considered him to be a conservative, not a liberal.

"Conservatives will be thrilled if Judge Breyer is appointed," the memo says. "He cannot be described as liberal and more likely falls on the conservative side of moderate. I would think liberals would be very upset at this selection."

In addition, the attorneys said, Breyer would bring no "particular change" to the court and would serve as "another unremarkable voice in the middle."

But "on the whole, he is probably easily confirmable, despite opposition from the left," the memo says. "Nothing in Judge Breyer's opinions suggests that he would be a great Supreme Court justice."

Gershengorn told The Wall Street Journal that everybody has regrets from when they were in their 20s, and his opinion on Breyer has changed.

"I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice," said Gershengorn." As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’"

The memo shows "why you don't have second-year associates writing evaluations of potential Supreme Court nominees," Perrelli commented.

Perrelli worked for three years as associate attorney general for the Obama administration and has returned to his old law firm, Jenner & Block. He told The Wall Street Journal that while he was a young lawyer, Gershengorn worked with him as a summer associate at Jenner, and they were among a group of private attorneys recruited by the Clinton administration to assess Supreme Court candidates.

Breyer ended up being passed over in 1993 when Clinton picked another federal appeals judge, Ruth Bader Ginsburg, instead. Breyer ended up being nominated and confirmed the following year.

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