Skip to content

The Senate hearings on Judge Stephen G. Breyer’s nomination to the Supreme Court of the United States are now over. The hearing was largely a lovefest and the Senators’ questions were soft or self-serving, except those by a critical Senator Howard Metzenbaum (D-OH).

Judge Breyer long ago laid the groundwork for his confirmation. He was staff director of the very Judiciary Committee that is passing on his nomination. He curried the favor of both Democrats and Republicans and, as a result, is supported by the unlikely combination of Senators Thurmond, Hatch and Dole, who are right wing Republicans, and Senators Kennedy and Simon, who are his friends and are Democrats.

The enthusiastic support for Breyer by the business community, led by the Wall Street Journal, reflects their opinion of Breyer as a corporate Judge, who will support big business. Judge Breyer’s decisions and writings amply justify this appraisal.

No Judge among the scores of federal judges on the circuit courts of appeal has a more consistent record of ruling for the corporate defendant who is accused of antitrust violations. If you are a small business, a defrauded investor, or a municipality suing a big company for violations of the competition laws, you’re very likely to lost in Judge Breyer’s court.

On the final day of the Senate hearing, about 25 witnesses were given 300 seconds each to voice their support or criticism of the Judge. Zippo, set them up and shove them aside, in just one day, the hearings are adjourned! The Senators want their weekend and that includes Saturday.

Those nine men and women in black robes on the Supreme Court affect your daily life in many ways. How you can defend your interest in the marketplace, workplace and community; how you can have the opportunity to influence your government or ward off its abuses; how your pension funds, the public lands, the electronic media, your health insurance, your fuel supply and the safety of the products you buy or use are going to be managed or delivered; and what kind of democracy and sustainability our society will achieve — all these and more are vitally affected by Supreme Court decisions.

In the past 13 years, a new generation of Supreme Court Justices have replaced Justices Warren, Goldberg, Douglas, Brennan, Marshall, and now Blackmun. Taken together, the new Justices are more likely, to put it simply, to side with the big guy over the little guy, more likely to place consumers, workers, small taxpayers and small investors at a disadvantage against their more powerful adversaries.

The new Justices are likely to be softer on violent and commercial corporate crime and abuse.

The new Justices do not have “the heart” that the previous Justices were known to have, deliver fewer opinions and are not eager to open doors for citizens to participate in their government.

Now from time to time there will be expectations, except for the hard line reactionaries — Justice Scalia and Justice Thomas. But with Breyer, the generally antipopulist Court is set for the next decade or two.

Breyer favors power, concentrated power and distrusts the efficacy of democratic public participation. This is clear in many of his decisions since 1980 and even clearer in his books and writings. Granted, before the Judiciary Committee, he said all the right things about “the people” and their rights. But then he was not asked about where he stood when corporate interests conflict with people interests. And if he was asked, he would not have given a direct answer — judicial nominees rarely do.

The most remarkable feature of Judge Breyer’s writings on government regulation of business — his specialty — is that he ignores the power, avarice, obstructionism and political influence of companies on the regulatory and legislative processes. It is as if they are just neutral, anonymous factors — like wooden soldiers — that are part of the scene rather than shapers of the arenas and what is done in them.

Improving the regulatory health and safety decisions does not involve corporate reform; it involves, Breyer recommends, setting up a special government corps of wise people to “rationalize” what these agencies do about the safety of your food, motor vehicles, planes, water, air, drugs, housing and the like.

Throughout his career he has shown very little concern about the concentration of business power, the influence of business over governments, the widespread corporate crime wave and the reallocation of billions of tax dollars for corporate subsidies and other forms of welfare.

More specifically, he ignores the success that corporate lobbies have had blocking government efforts to save lives and health. Many tens of thousands of Americans died or were injured by the 18 year delay in air bags, the long delay in issuing the lead removal rules (from gasoline) and many others.

None of this matters for most Senators. For Stephen Breyer “is one of them”. But he assuredly is not “one of us.”