Breyer Nomination

The Wall St. Journal editorial writers love him. Senators Dole and Hatch, who carry the water for big business subsidies, privileges and escapes from accountability, adore him. The corporate bar, made up of wealthy lawyers who work to entrench corporate power over people, are ecstatic. He is Judge Stephen G Breyer and Clinton’s leading nominee to become Associate Justice of the Supreme Court of the United States. Long time observers of Clinton’s political career are not surprised. He talks progressive and acts corporatist. During the campaign, Clinton would criticize the greed of large companies, such as the drug conglomerates and pledge to go after the huge salaries and bonuses that the business bosses would pay themselves, while at the same time receiving government welfare and giveaways

But since he became President, his jogging has become back­pedalling. Dole barks and Clinton jumps. His behavior reminds me of an observation years ago that my father made when he said: “politicians who fear their opponents more than their friends will find themselves becoming more like their opponents and less like their friends.”

Enter Stephen Breyer, with all the right connections on the Senate Judiciary Committee. He was on Ted Kennedy’s staff and as an early advocate of deregulating natural gas prices, he found favor among the oil-marinated Republicans on the Committee. Before Carter appointed him to the federal circuit court in 1980, Breyer taught at Harvard Law School, pushed dropping regulations on corporations, became a millionaire and made more Republican and Democratic contacts.

He served on a Working Group of the notorious Dan Quayle Council on Competitiveness two years ago which, with extreme, right wing jurists, drew up recommendations to further limit the liability of corporations when challenged by their victims and to make it more difficult for ordinary aggrieved citizens to have their day in court against the perpetrators of their harms.

Breyer’s judicial record and writings reflect a philosophy which serves to conserve the existing status of corporate power and .to fend of challenges designed to curb or hold such power more accountable. Law professor William Kovacic found that Breyer rated 100* on the conservative scale for his antitrust opinions, even exceeding the score attributed to fierce opponents of the antitrust laws such as federal circuit court judge, Richard Posner.

Given the intense concentration of power in fewer and fewer big corporate hands, Breyer’s position on antitrust law and enforcement is not a minor matter. Similarly, if you are a plaintiff-investor taking on a company in a securities fraud case, watch out: Breyer is inclined to go after your claims, your lawyer’s zeal and what the jury’s province should cover at trial.

Corporate crime and misbehavior are not issues that absorb Breyer’s concerns and writings. His forthcoming book, titled “Breaking the Vicious Circle” repeatedly cites right-wing “studies” and specula­tions on his way to centralize more regulatory power in the Office of Management and Budget which has raised ex parte contacts from the well-connected lobbyists to an ugly art form. At the same time, he routinely ignores the systemic shutout of consumers, workers and taxpayers from rightful access to both regulatory agency proceedings and proper judicial review over agency lawlessness or capriciousness.

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