Justice Breyer and the 'Stress' of Confirmation

Fifteen summers after he was confirmed to a seat on the U.S. Supreme Court, Associate Justice Stephen Breyer said his Senate hearings were "stressful" even though "my confirmation was supposed to be pretty noncontroversial." In an interview with TheAtlantic.com at the Aspen Ideas Festival earlier this month, Breyer remembered what it was like to testify: "There are 17 senators on one side of the table, and I'm on the other side. And people are watching me on television, and I'm not used to that."

To prepare for the Senate Judiciary Committee, the Clinton White House put Breyer in an office and gave him transcripts of previous Court confirmation hearings. "I simply read through them and [noticed that] the questions tend to repeat." Still, said Breyer, "The best advice I got was, 'Answer the question.' Think about the question. You don't have to answer immediately. Think about what you're going to say. And then answer it. And they'll go to another question. And when they run out of things to say, you'll be confirmed. And I was." Breyer was confirmed 87-9 on July 29, 1994.

During his years on the Court, Breyer has been a mostly reliable liberal and something of a pragmatist. He believes that the Constitution should be interpreted with some flexibility, as opposed to the philosophy of original intent espoused by some of his conservative peers. In Aspen, Breyer shunned originalism. "You have to identify what was the central point of that provision, and how does that point apply to today's world. For example, when they wrote the Commerce Clause, nobody thought there would be television, nobody thought there would be Twitter, nobody thought there would be blogging and computers. But those things today that nobody thought of are part of interstate commerce."

Breyer agreed that the Court is more polarized today than it has been in recent years. According to the New York Times, the Court split 5-4 or 6-3 in nearly half the signed decisions in the term that ended last month. Breyer notes that the 5-4 cases tend to share a similar justice-by-justice breakdown, a fact he laments. "It was not so high if you go back three or four years...and I would prefer it was not so high."

As for David Souter, whose retirement from the Court after 20 years created the vacancy which Sonia Sotomayor has been named to fill, Breyer talks about his judicial acumen and his "great sense of humor." There was the time Souter was in a Boston restaurant and was recognized by the waiter as a justice but mistaken for Breyer. "Do you enjoy being on the Court?" Souter was asked by the waiter, who thought he was talking to Breyer. "Oh yes." "What's the best thing about it?" the waiter asked. Souter paused and answered: "Working with Justice Souter."
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Bob Cohn is the president and chief operating officer of The Atlantic. He was previously the editor of Atlantic Digital, the executive editor of Wired and The Industry Standard, and a writer at Newsweek. More

As The Atlantic's president and chief operating officer, Cohn oversees business and revenue operations for the company’s print, digital, and live-events divisions. He came to the job in March 2014 after five years as the editor of Atlantic Digital, where he built and managed teams at TheAtlantic.comThe Wire, and The Atlantic Cities.

Before coming to The Atlantic, Cohn worked for eight years as the executive editor of Wired, where he helped the magazine find a mainstream following and earn a national reputation. During the dot-com boom, he was the executive editor of The Industry Standard, a newsweekly covering the Internet economy. In the late 1990s, he served as editor and publisher of Stanford magazine. He began his journalism career at Newsweek, where for 10 years he was a correspondent in the Washington bureau, at various times covering the Supreme Court, the Justice Department, the FBI, and the Clinton White House.

In 2013, TheAtlantic.com won the National Magazine Award for best website. During Cohn’s tenure at Wired, the magazine was nominated for 11 National Magazine Awards and won six, including honors for general excellence in 2005, 2007, and 2009. As a writer, Cohn won a Silver Gavel Award from the American Bar Association for coverage of the Clarence Thomas confirmation process.

A graduate of Stanford, Cohn has a masters in legal studies from Yale Law School. He lives outside Washington, D.C., with his wife and two daughters.

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