Justice Breyer and the 'Stress' of Confirmation

By Bob Cohn
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."


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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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