This article was originally published in The Washington Post on March 16, 2016
At a moment of impasse over President Obama’s nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the Supreme Court vacancy caused by Antonin Scalia’s death, it would be useful to remember this example: A powerful U.S. senator asks the president to nominate his brilliant young staff lawyer to a high judicial position. Both are Democrats, but the president is a lame duck, Republicans are poised to take control of the Senate, and the staff attorney helped draft and advance controversial legislation in a reluctant Congress. Nonetheless, the nominee is overwhelmingly confirmed, with Republican votes delivered by a die-hard conservative.
Never in your lifetime? Maybe not, but certainly in mine. And that lawyer now sits on the Supreme Court.
It was a few weeks after Jimmy Carter was defeated by Ronald Reagan in 1980. Sen. Edward M. Kennedy (D-Mass.) had introduced and piloted one of Carter’s signature achievements through Congress — the law that opened the established airlines to competition. The man who shaped Kennedy’s ideas on deregulation and joined his staff to help enact the legislation was a Harvard professor of administrative law named Stephen Breyer. Kennedy wanted to reward him.
I was sitting in my West Wing office serving out my final months as Carter’s chief domestic policy adviser when the phone rang. It was Kennedy, informing me that there was a vacancy on the U.S. Court of Appeals for the 1st Circuit, which reviews cases in New England. He wanted Carter to nominate Breyer, whom he said was brilliant and had been crucial to our airline deregulation victory.
Flabbergasted, I told the senator that he did not need to convince me of either Breyer’s qualifications or the central role he played in our legislative achievement. But I said that two hurdles seemed insurmountable. Kennedy asked what they were.
First, I told him there was no love lost by the president toward him; Carter felt that Kennedy’s challenge to his nomination split the party and helped elect Reagan. Kennedy quickly replied, “I know, that’s why I called you and not the president.” The second was that because the Democrats had also lost the Senate, Strom Thurmond, the South Carolina conservative, was poised to become chairman of the Judiciary Committee. Why, I asked, would Thurmond permit a Democrat to fill a lifetime appellate position just one step below the Supreme Court when he could block Carter’s appointment, wait a few months and confirm Reagan’s choice?
“Stu,” he said, “you take care of the president; I will take care of Strom.”
Shortly afterward, and with some trepidation, I went to the Oval Office. “Mr. President,” I began, “forget who requested this, but there is a vacancy on the 1st Circuit, and it would be a tribute to you to nominate Steve Breyer.” I had written all the reasons the president should nominate Breyer on my trusty yellow legal pad, but Carter stopped me as I started reading out my list. “I agree,” he said simply. “I’ll do it.”
I called Kennedy to report that I had delivered on my part of the deal — and what about Thurmond? To my amazement, he said that Thurmond would support the nomination and bring the other Republicans along with him. And why, I asked, would he do that? Kennedy explained: “Strom likes Steve and feels he has been fair to him and the Republicans. Even though we’re at opposite ends of the political spectrum, we do these kinds of personal favors for each other for people we feel are qualified.”
Breyer later told me that on countless mornings while he worked for Kennedy, he and Kenneth Feinberg — a senior Kennedy aide who later became renowned as a mediator of 9/11 claims and other cases — would have breakfast with Emory Sneeden of Thurmond’s staff. They discussed upcoming issues and the different positions of various senators “to try to get things to work out smoothly.” They also discussed judicial appointments, and when there were differences, they would “work out everything” in time for the committee’s closed-door session, when nominees were discussed.
U.S. Supreme Court Justice Breyer has told me he feels he probably would never have been picked for the high court by President Bill Clinton if he were not already serving as an appellate judge. During the first confirmation hearings, and later those for his Supreme Court nomination, Thurmond heaped such praise on Breyer that if I had redacted the senator’s name from the transcript, I might have imagined Kennedy were speaking.
We lived then in a political world far from today’s polarized and polluted arena, where what happened with Breyer’s nomination would be unimaginable. No one can make time run backward, but the example remains of his judicial temperament and the personal courtesy and legislative comity that put him on the bench. May it be restored to our nation one day soon.