THE WHITE HOUSE
Office of the Press Secretary
PRESS BRIEFING
BY
THE VICE PRESIDENT,
DEPUTY WHITE HOUSE COUNSEL JOEL KLEIN
AND
ASSOCIATE WHITE HOUSE COUNSEL CLIFF SLOAN
The Roosevelt Room
12:12 P.M. EDT
THE VICE PRESIDENT: I'm very happy to be here today. I'll just make a few comments at the beginning and then just go right to whatever you all want to discuss.
Obviously with the hearings beginning on Tuesday, we are geared up fully for the nomination discussion and what we hope will be a very positive affirmation of the President's selection. In some ways, I think this is -- well, just speaking in personal terms, it is a great pleasure to be able to promote the virtue of this particular nomination. He is a friend and he is obviously an outstanding jurist. So you can get comments from all points along the ideological spectrum, from people who say we are going to pick the top lawyers, top judges anywhere in the United States. Steve Breyer has to be on everybody's list. And he has compiled a distinguished record on the bench and before that. And has the respect of everybody who has worked with him.
I've had the opportunity to look in some more detail during the selection process at some of his opinions and a lot of his work. And the more you look, the more impressed you are with his depth, with his integrity, with his commitment to excellence. And that word excellence is a word that comes up over and over again in descriptions of Stephen Breyer.
To put it in a broader context, I remember, as many of you do, the days in which Supreme Court nominees were used as wedges to divide the country and to promote political agendas. And with the two selections that have been made by President Clinton, Justice Ginsburg and Judge Breyer, we see a completely different approach -- a commitment to enhancing the stature of the Supreme Court, enhancing the respect that the American people have for the process by which our laws are judged, and a commitment on the part of the President -- to use the word again -- excellence, in judicial appointments.
I think that is the broader context in which this particular nomination ought to be viewed. We hope and expect that the confirmation hearings will go extremely well. Obviously, the President and his staff are fully geared up for whatever lies ahead. We don't take anything for granted, and will not, but we believe that this is going to be a very successful experience in the committee and the Senate.
So with that, I'll throw it open to your questions, comments, diatribes, whatever. (Laughter.)
Q How has the preparation for this differed from the preparation for Justice Ginsburg's confirmation hearing?
THE VICE PRESIDENT: We built upon the experience gained in Justice Ginsburg's confirmation, and improved it only in the way that you build on a success and add a few ruffles and flourishes along the way to try to fine-tune the process. We think that was a successful process.
In many ways it's similar because the nominations are similar. They are not controversial. They both involve excellent nominees with broad support. So I would say similar, but having gone through that experience, we've built upon it and improved it a little bit.
Q Any specifics?
THE VICE PRESIDENT: Well, I don't want to go into the details of, you know, of how a nominee is assisted in anticipating questions and so forth, but nothing really dramatic or exciting that would be especially newsworthy, I don't think.
Q Do have a vote count -- either the Committee or the full Senate at this point?
THE VICE PRESIDENT: No. I'd say it looks good based upon preliminary comments by members of the Committee and senators generally. We don't know of strong opposition, but its too early to develop a reliable vote count. Again, we don't want to take anything for granted.
Q When the President was examining his options on all of this, he was looking for somebody, he said, I think, with a big heart, or it was a big soul. I can't remember. But it was one of those two. In your readings of Justice Breyer's work, or his books, or his opinions, where do you see that in this thing?
THE VICE PRESIDENT: Well, I think in his whole career, he is committed to the right values, the right principles. I spent a lot of time with some of his opinions on civil rights, just to choose one example. And the commitment to expanding the nation's commitment to these core principles, I think comes through loud and clear.
And as I said earlier, the more you know him, the more you come to appreciate what he is really like -- his wife and his family and he, himself, are really wonderful people. I've known them. His wife, as you may know, works with terminally ill children. His whole approach to life, I think, is just a real model. I think he's a wonderful person.
Q I thought when he said that he was sort of saying, somebody who really understands the problems of the common man, somebody who -- Breyer has spent all this time in Washington, in the Senate committee or at Harvard Law School or in court. I mean, that's not somebody who -- you get a sense, really has a common touch.
THE VICE PRESIDENT: Well, I don't buy that. If you go back and look at the -- I would urge you to go back and look at the statement that he made at the White House with the President when he was -- when his nomination was announced. And he talked about the larger purpose of the law as being in total an effort to improve the life of the average person in this country who deserves justice and deserves a better quality of life.
It's easy to say that in the way I've just said it, but the way he said it with the jurisprudential background all funneled down to that one single objective, I think, demonstrates that he has that capacity and that determination. And others who have written about his approach to the law, the way -- the reason he's in this whole profession, have made that same point in interpreting his opinions and writings.
Q I'm sorry. Can I follow up one more time? My colleagues who, I'm sure -- bored with this line of questioning, but do you get the feeling that at any point that we are reaching critical mass with the number of judges on the Court? And I don't mean that in a facile sense. We used to have a lot of politicians who were on the Court, people with other experience besides right out of circuit Court, or district courts or appeals courts. Now we are down to, I guess, only one of the justices on the Court had a very brief stint in state legislature and that's it. We have, where everything is just the people with experience in Courts now.
THE VICE PRESIDENT: Well, I don't know. I think that's an historical trend that's been underway for quite a long time.
Q Do you think it's a good one or not?
THE VICE PRESIDENT: Well, I think the reasons for it are pretty understandable because of the work of the Supreme Court has evolved over time to emphasize the particular skills that judges on the lower courts have in abundance. But is there an argument for non-judges? Of course, but I prefer to look at each nomination as an individual nomination. And certainly there is no person better qualified for this position than Stephen Breyer. I haven't seen anybody credibly make that case, but -- I mean I understand your point. I don't think that it's something that outweighs the virtues of this particular nomination.
Q How have you advised him to answer questions about controversial issues such as abortion and the death penalty, and personal controversial --
THE VICE PRESIDENT: Oh, I think you ought to stonewall -- (laughter).
Q Do you have a particular phase that you --
THE VICE PRESIDENT: I'm sorry, we're on the record, aren't we? I suddenly realized that. (Laughter.)
Q I thought the -- (inaudible) -- was a good one --
Q Something like, I don't think it would be appropriate for me to comment or -- (inaudible) -- phrases?
THE VICE PRESIDENT: I don't think that -- first of all, personally, I don't know exactly what advice has been given. I would not be surprised if he didn't know a lot more about that subject than anybody advising him.
I mean, he was on the committee in a key staff role and has been through the confirmation process before, and understands all the context. And I don't think he really needs advice on how to protect his independence of judgment on questions that may come before him as a member of the Supreme Court, while simultaneously being as responsive to the committee as he can be.
I just think that he's surefooted enough to strike that balance without a lot of advice from us.
Q President Clinton during the campaign said that he would only nominate pro-choice judges. So can we presume that you all are all satisfied that he is pro-choice?
THE VICE PRESIDENT: Well, there's a difference between applying a litmus test and saying you have to have position A on subject X on the one hand, which the President has not done, and has never done; and the alternative approach, which is to make a judgment about a potential nominee's approach to the Constitution, understanding of individual rights as protected by the Constitution, and inferring from that potential nominee's approach to such questions, what kind of approach he or she takes to the large issues that are out there. I think you can do that as well as we can with his writings and with his opinions.
Q Will he answer straightforward questions, though? Like abortion rights and the death penalty, for instance -- those two areas?
THE VICE PRESIDENT: What do you mean by that?
Q I mean will he -- (laughter) --
THE VICE PRESIDENT: Again, let me come back to the same answer. He will be, I'm certain, as responsive as he can be without jeopardizing his duty to remain objective where issues are concerned which might come before him as a justice.
You know this routine very well, and nominees for the Supreme Court are just sort of structurally insulated by their duty to remain objective, and people come at them in different ways, and it's always pretty much the same because they do have a duty to remain objective and to insulate themselves, and it's a valid approach for them to take.
Q You said you can infer his position. Do you infer that he's pro-choice?
THE VICE PRESIDENT: Well, do you?
Q I think it's mixed on the rulings. In some cases yes and in some cases, no. It's not clear to me.
THE VICE PRESIDENT: Let me answer it a different way. I personally believe that he has a full understanding of why individual rights are protected under the Constitution and has eloquently expressed his own belief that the Constitution speaks loudly and clearly on such questions. But I will not enter into particular fact situations and try to infer what he would say about them. I'll just say that everybody around here has tremendous respect for the way he approaches issues of that kind.
Q Let me ask you about another issue. Judge Breyer and Senator Metzenbaum appear to have fundamentally different approaches to anti-trust law. Which one is out of the mainstream?
THE VICE PRESIDENT: What a sharp-edged question. (Laughter.) They're both friends of mine. I don't think Senator Metzenbaum has taken a position against Judge Breyer's nomination, and I don't know whether he will or not. I do know that many who have taken the time to study Judge Breyer's positions on anti-trust cases in depth have come away feeling that he has a full appreciation for the necessity of competition and adequate anti-trust enforcement.
You may have seen Bob Pitovsky's article addressing that question directly. Whether Senator Metzenbaum, after an in-depth look at Judge Breyer's opinions, comes to a different conclusion will be for Senator Metzenbaum to decide. I just don't know about that.
Q A question related to Ken's question about the common touch. If Breyer's confirmed, he'll be the richest justice on the Court, followed closely by Ruth Ginsburg. Does it seem odd that the two Democratic appointees to the Court are the richest ones?
THE VICE PRESIDENT: I don't think that has any particular bearing on his views about issues that come before the Court. He has been successful in his various careers. He's an extremely able person and I don't think he should be penalized for that.
Q Mr. Vice President, the jurisprudential tradition that Judge Breyer invoked in the Rose Garden seemed to be something along the lines of pragmatism, that he's thought a lot about. I wonder whether you think that that's an appropriate principle for constitutional analysis and whether you think that Judge Breyer has thought very carefully about the ramifications of applying pragmatism to the Constitution.
THE VICE PRESIDENT: Well, I try to be pragmatic about that. (Laughter.) There are limits to pragmatism. I don't know if I can improve on that response, really, inadequate though it is, to a thoughtful question.
I do think that it's hard to pigeon-hole Judge Breyer as merely a pragmatist. I don't think that's fair to the depth and texture of the approach he's taken to the law. I think without reprising my offhand, flip comment, I do think that there are limits to pragmatism, and I think he understands and appreciates --
Q Following up on the common touch or the heart-soul question, with the criticism against Judge Breyer regarding his antitrust decisions, one of the concerns is that his rulings in that regard are against the common man, that they are more so for big business and for big enterprise. What has been the advice or the response Judge's preparing with regard to that type of criticism?
THE VICE PRESIDENT: Well, I don't know what his response to that -- I don't know that that criticism will be made. I don't know what his response would be. I'll give you my response. I think that it's unfair as a potential criticism because anti-trust law, as you well know, is immensely complex and there are, in different fact situations, reasons for arguing the point that the consumer is going to benefit from a particular decision one way or the other. And a clear pro-consumer point of view is evident, according to many analysts, with whom I would agree, in his opinions.
And you know, again, there are different ways to interpret how the consumer is going to be affected by a given decision one way or another. And so I personally don't think that's fair, but if it comes up, I'm sure he'll deal with it well.
Q Is there any concern about his investments, the questions that have been raised about conflict of interest, the Lloyd's of London investment?
THE VICE PRESIDENT: No. I've read the stuff written, but the investments in question were made before he went on the bench. He's fully disclosed them from the very start, and annually disclosed them again, each year. He has publicly recused himself from any case where he knows of any nexus between the case in question and the investment made so many years ago. He attempted to withdraw from the investment and was prevented from doing so, insured himself personally against liability that could arise from it potentially, and insulated himself in that manner, in addition to the recusals that I referred to earlier. So I really don't see the gravamen of the complaint there, myself.
Q I'd like to go back to something you said in your opening statement about this being a departure from a tradition where you pursue a political agenda in Court appointments. I seem to recall Democratic campaigns in recent years talking about, "think about the Supreme Court when you vote." Why is it a political agenda, something that you should consider when you make appointments in the Supreme Court? Certainly the President talked that during his campaign. I'm sure you must have, as well.
THE VICE PRESIDENT: I did. I did.
Q The Republicans put Thomas and Scalia and Rehnquist and so forth on. In fact, they did it, in most of the cases, with them facing Democratic Senate-controlled confirmation hearings. And it seemed as though almost all the commentary on this appointment was that you all wanted to avoid a confirmation fight, with Breyer, and that was his main, final virtue in this whole thing.
THE VICE PRESIDENT: No, I don't think that's at all fair to him. This is a man who has been universally acclaimed as one of the top handful of judges in the entire country, for several years now. He's a man of unquestioned excellence. And so to say that his virtue is a lack of controversy, I don't think it's fair to him.
If there is a lack of controversy, and we hope there will be, sure; but if there is a lack of controversy, it will be because those who disagree with his positions on issues, even issues of great political salience in our democracy, nevertheless have such a deep respect for his ability, his integrity, his character and his commitment to excellence in the law, believe that those things outweigh the difference of view on political questions.
And in that formulation lies the difference between this kind of nomination and a Carswell nomination, for example, where you could see divisiveness selected as a virtue in itself. You can have political differences of opinion and still maintain comity and respect and national unity.
There may be times when the political difference is such that you jus can't avoid that, but if you have a nominee who is going to help the country, as its views were expressed in the most recent presidential election, move the Court in the direction the victorious presidential candidate said was a legitimate subject for debate in the campaign; and that nominee is, at the same time, a person who commands such respect by the opposition that there is a lack of controversy, that's the best of all possible worlds for the United States of America.
Q You know, we have been asking you what his position is on the death penalty and abortion, two fairly divisive social issues in this country, and it's curious to me that if the old axiom is true that the Supreme Court follows the election, somebody on that side of the table probably ought to know the answer to those two questions pretty fundamentally.
THE VICE PRESIDENT: Well, you've brutally truncated that old axiom into a --
Q I work for television. (Laughter.)
THE VICE PRESIDENT: Gee, I thought you were doing a half-hour show now. (Laughter.)
Q That's C-SPAN.
THE VICE PRESIDENT: It doesn't follow the election immediately and so closely as to give whiplash to the judicial system.
Q It just seems to me, with all due respect, that it didn't bother the Republicans to put up a Scalia or a Clarence Thomas in the face of the Democratically-controlled Senate; and here President Clinton is going for -- the Court seems to be Souter-ized at this point. We don't want to know really what these guys are all about. We'll take the surprise later. George Bush did get a surprise.
THE VICE PRESIDENT: No, that's not fair, either. That's not fair, either. Can you seriously sustain a hypothesis that this is a mystery candidate?
Q Well, we've been trying to get an answer out of you guys on death penalty and abortion, and those are pretty fundamental issues.
THE VICE PRESIDENT: But trying to get an answer and trying to get -- and knowing the answer are really two different things.
Q Well, could you give us an answer? (Laughter.)
THE VICE PRESIDENT: Do you know the answer?
Q No, that's why we asked.
THE VICE PRESIDENT: Oh, come on.
Q This is like a Cuomo press conference.
THE VICE PRESIDENT: Thank you. (Laughter.)
Q Let me say that leaders of liberal interest groups who feel twice burned by the administration's first two Supreme Court nominees -- that Justice Ginsburg in her first year was not as progressive as they might have hoped out of a Clinton nominee and that they fear the same thing out of a Justice Breyer.
THE VICE PRESIDENT: Well, I think Justice Ginsburg has compiled an outstanding record and has added real excellence to the Court.
Q Some of the news analysis has shown that Justice Souter, Bush's last nominee, voted more with the so-called liberals than Justice Ginsburg did, and that therefore -- I'm talking -- (inaudible) -- liberal interest groups that are dissatisfied.
THE VICE PRESIDENT: Oh, oh. Well, we're very pleased with the record that she's compiled and we hope that Judge Breyer will be confirmed and we trust that if he is confirmed, he will also compile an excellent record.
MR. JONES: The Vice President -- one more question.
Q It won't be from me. I can tell you that. (Laughter.)
THE VICE PRESIDENT: Do you think that too many television journalists are drawn from the ranks of print journalists?
Q No. Too few.
THE VICE PRESIDENT: Don't you think it would be good to kind of branch out, get some judges? (Laughter.) Actually, some lawyers are getting in this week --
Q Katherine Crier, she's a judge.
Q I'm one, too.
THE VICE PRESIDENT: Oh, was she a judge?
Q She was a Texas state judge.
THE VICE PRESIDENT: No kidding.
Q Republican.
Q Texas state judge.
THE VICE PRESIDENT: Well, not now. (Laughter.) I'm sure she's totally objective.
Q got one more question.
MS. VOLES: You had it.
Q No one asked about O.J.
THE VICE PRESIDENT: Thank you all.
Q Could you tell us a little bit about the ongoing process of gathering these lists? I mean, if somebody were to resign tomorrow or a new vacancy opened tomorrow, are you ready for another justice already? And do you keep this going on all the time?
MR. KLEIN: Well, I think, you know, it's sort of --the list -- want to do some background? I don't care. Do you want this on the record?
Q Yes, I -- on the record.
MR. KLEIN: Why don't we do it on the record and if I or Cliff makes some great misstep here, you'll cut us some slack. Unlike The Vice President, we don't do this for a living.
You know, the way it works is sort of the way it started with Ginsburg and has worked through now. Basically, the day when we started to anticipate at the beginning that there was likely to be vacancies, we probably checked out, looked at, analyzed I would say as many as 60, 70 people.
Q Sixty or 70?
MR. KLEIN: Sixty to 70. So we have a working list. If we were fortunate enough to get a vacancy tomorrow, I think I have a pretty good idea of who the people that would immediately surface to the top of that list. And I think they would come as no surprises to anyone in this room.
Q Can you give us an idea about what the preparations have been like with -- (inaudible) -- you know, just anecdotal type stuff. Is he sitting at home? Is he here?
MR. KLEIN: No, no, I'll give you -- first of all, I wanted to answer the question -- when the Vice President said, he said about what the difference has been. One major difference is Breyer's had the opportunity to read Ginsburg's testimony, which of course, Ginsburg didn't have the opportunity. And she was obviously just a home run at this process, and that's helpful.
Basically, the process consists of three, four components to it. Obviously you go through all the Senate courtesy calls and that runs the gamut from a fair amount of -- (inaudible) -- to some detailed discussion and analysis of substantive issues, depending on the senator and where he or she is coming from.
In terms of our preparation with him, we provide him with a fair amount of background materials on sort of the issues that have been before the Court -- the prior confirmation hearings, just sort of what's going on. Some decisions are coming down quite literally as we're preparing.
Then he does several things, in addition -- tidies up his affairs in Boston and reading this stuff. He did meet and talk to a number of distinguished academics. You know, just to sort of bat around ideas, thoughts and so forth. Then people on our staff sit and ask him questions about -- you wrote this in this opinion; what did you mean by this; how does that square with the Supreme Court's decision -- and so on and so forth. And then you go through several hours a day of that kind of thing and then you actually get down to sort of where we are now in the process of an actual mock hearing where somebody is Senator X and somebody is Senator Y and we go through, essentially, the drill.
Q (inaudible)
MR. KLEIN: Who are they? We've had a number of different academics, I mean different law professors and so forth. I'd really rather not get into the individuals. And I simply don't want to tell you -- (laughter).
Q You say Senator X and Senator Y. Are they specific people like, you know, Metzenbaum is probably going to ask you about this or --
MR. KLEIN: We try to replicate, obviously -- I mean you have two things going for you on this. You have what the Senators -- all of whom have been through at least one confirmation, Ginsburg, and several of them have been through half a dozen -- basically, you have the questions that they ask.
I mean I know sitting here today that Leahy has always asked and is likely to ask some questions about freedom of religion -- it's an important issue for him -- you have that. Then you have -- what you try to take in the process is what has Breyer done or said about those issues and weave them in so that you have the combination of the general as applied to the specific. And that's the way it goes. And we have different people who bone up on a particular senator --
Q Senator Biden often asks about the privacy rights.
MR. KLEIN: You bet.
Q You're anticipating that?
MR. KLEIN: I think these questions -- I mean if I can just amplify a little bit on this colloquy involved, you know, what is he going to say about the -- (inaudible) -- issues of our times. I mean I think, first of all, really -- what he's going to say is obviously something that will come up in hearings.
The one thing I do want to say, both Cliff and I will be available as much as we can to you in the process. So if you need to call, just call. I think we'll be the principal people in terms of background and other stuff. If it gets more interesting, I think Lloyd will probably be available. But assume it stays at this level.
You know, there are two or three issues -- and I think Jeff probably raised this, too, about pragmatism. I think that the fundamental issues of sort the enumerated rights, the issue versus the privacy substantive due process, that range of issues which I would say has, depending on your viewpoint, (inaudible) the last half dozen hearings, those issues are going to be fully discussed. They've been discussed before and so forth.
Their application to a specific, concrete case that's likely to come before the Court is not. And where exactly how far he's prepared to go is going to depend in part on the questions and in part on, I think, his real firm sense that he has to appear as well as be open to litigants and arguments. It's just not --
I mean everybody at this table may have a view on the application of Roe v. Wade to every nuance, waiting period, consent form, and so forth. But I mean when you take these cases you've got to read them and study them, and he hasn't done that. He hasn't done that in that detail. Now, how does he think about substantive due process, he's going to talk about those issues, absolutely going to talk about them.
Now, people can get, I think, a pretty good sense of where he is in the spectrum of things. What they're not going to get is, I think, the answer to the docket that's come before the Court next year or the term after. They're just not going to get it, and I don't think they should. But I think you're going to get a pretty good working sense of where he is. And I think you're going to see that is it more than pragmatic. I think it is -- it is -- you know, the Court generally seems to reasonably in a pragmatic mode these days. But I think his views will be I guess doctrinal, as well as pragmatic.
Q Is there actual role-playing that goes on where different people sit in the places that the senators sit and go through that type of role-playing? That's my first question.
My second question is in the preparation what is Judge Breyer's weakest point, then?
MR. KLEIN: His weakest point is when we try to end at 5:00 he wants to stay and talk until 6:00, that's his weakest point (laughter). He is so enthusiastic. There is one thing that I will say about him -- this is sort of -- really it's interesting -- his enthusiasm for this stuff is unending. I mean he just loves to kind of hash and rehash. "Well, you think that. But if you have that principle, how does it work in this way?" So I mean that's the law professor in him, obviously, and he loves it.
I think in terms of who sits where depends upon -- we have, in our cast of mock senators, we have some who are sort of quite rigid and some who are quite flexible. Some like to sit -- you know, you're the chairman, you're the ranking member, you're the senator. Others just sit on a couch. So I think it's (inaudible).
I don't know -- you know, weak in this, that, or the other. I mean, I think it's -- at times there are some areas of the law that he knows absolutely cold, he has written about, he's been exposed to. There are other areas that he's just somewhat less familiar with. And that's just a question of what his experience has been.
Q Mr. Klein, when the vice president was asked about news stories about raising the issue of conflict because Judge Breyer is a name -- Lloyd's. He gave -- he said you all have concluded it was not a valid concern. But, with respect, he spoke in very general terms. You all have examined it in much more detail. Can you give us some more of your reason behind why you think this is not -- in terms of a judge's role in conflicts and what is proper to recuse himself from?
MR. KLEIN: Sure. Let me say a couple things on that. First of all, I will say that the New York City Bar Association, which has also done some evaluation -- (inaudible) to look into this as well and I think they concluded, as we have, that this does not raise an issue.
I think what I would say to you is principally the following thing: I think if you look at the range of his investments, including his investment in Lloyd's, and you look at the cases he decided, there's simply no plausible argument that that has a direct and tangible effect on his economic situation. I think that that is, to me, dispositive in this matter.
Q On his personal economic situation.
MR. KLEIN: On his situation, on his investments. These cases are remote by anybody's standards. It's no different than, to take a classic type of example in my mind, if you own stock in any corporation, which judges do all the time, you can always say that some case might have some remote effect. If you rule for a longer or shorter statute of limitation, that might be good for Corporation X or Corporation Y. But I think that's the level of it.
Now, I think the mystery in this is Lloyd's. And I think that's why the people sort of look at it. And I think there are two aspects to the mystery. One, sort of Lloyd's is somehow, all of a sudden, having once been this shrouded -- nothing more that sound of the bell; now everybody reads about it in The New Yorker. And second of all is this issue of "unlimited liability." I mean I remember when I once (inaudible) they told me, you know, down to your last pair of underwear is what your exposure is here. That's a bad metaphor (laughter).
But people, you know, sort of that's what it -- in practical terms, he's go on this one open syndicate, as the vice president said, he tried to get out of his investment in 1988 and he successfully did except he had this one open syndicate on that. He's got adequate insurance, by any reasonable standard. So he has no personal, long-term exposure other than, you know, as I said what it says about Lloyd's.
So I think that's what it comes down to in the end. And in my view, at least, it's been no real demonstrated showing. I mean it's not -- there's not a case anyone said -- his syndicate, his insurance company so to speak, had a line on that case on that defendant. And therefore, if he rules for X, his insurance company has to pay or doesn't have to. It's not anything like that.
And so I think all it is is the fact that if you're a judge and you pay taxes and you rule on a tax case, you may have that kind of a -- (inaudible) -- effect. That's where we are and I'm comfortable with that. And as I said, I think that's where the bar association is and I think that's where the emphasis will be. We expect we'll get probably some -- there will be some ethical opinion or something like that that will probably be released as well on that.
Q That you will probably release?
MR. KLEIN: I anticipate that.
Q When will all of that take place?
MR. KLEIN: When will that take place?
Q When will you release it?
MR. KLEIN: I don't know. Probably in the next few days, I think.
Q An ethical opinion?
MR. KLEIN: Yes, in other words, from some ethicist, some of the academic ethicists who will take a look at this.
Q Do you have a list of people who have requested to testify that you're ready to give us?
MR. KLEIN: I don't think we're quite there on who the people that are going to testify. I think that's really the committee's call. We don't decide who is going to testify. We have some ideas of people we'd like to testify. I think there's been probably very few people who have asked to testify in opposition in any way. But I think that's really the senators' call.
Q One group of critics is the people depict him as kind of the symbol of airline deregulation and they say, you know, if you hated your last airline flight, you should hate Steve Breyer. What about that issue? (Laughter.)
MR. KLEIN: I just think that, to me, that boggles the mind. I don't know how to respond to something like that. I mean I think -- this is a guy who people say a big heart, little heart, you know, when he was on the Senate Judiciary Committee as chief counsel and so forth. He's working on these cutting edge issues. I mean airline deregulation, you get involved in that, it's going to be divisive. I mean that's what he's doing. He's taking tough programmatic policy decisions, things that directly effect consumers. And I think most people think that it's essentially a positive thing to be involved with.
He's there. He worked on issues like minority clubs and keeping out of, you know, minority -- the people who have been in exclusive clubs and those kinds of issues. He's involved with that. So I think that's the range of experience.
Now we're looking at a guy for the United States Supreme Court. He's not working on the Hill anymore. And I tell you -- you can ask anybody. Go around and ask any group of academics, an law school, go ask any group of federal court judges, "Tell me the three people in the United States today most qualified to be on the United States Supreme Court." And I'll bet you that Stephen Breyer's name shows up on that list more than anybody's. And I know that because I've spoken to these people.
Now that seems to me to be monumentally important, particularly because -- and Tony, I feel this probably more strongly than most people -- but I bet you the issues of the 21st Century are not going to be the issues that we're talking about now. It may well be that the issue of the death penalty seem highly politically divisive right now. But I think the issues involving the new technologies and what those technologies say to us about matters like privacy and so forth are going to be the fundamental issues. And I'll tell you this is a guy who is way ahead of the field now.
The normal people who are working on so-called substantive due process issues are no where near where this guy is on issues of science and technology and regulation. And everybody who has read his book -- it's a somewhat controversial book -- everybody who has read his book on regulation says, "This is good stuff. You can like it. You can disagree with some of it, but this is a guy who has got a very heavy mind that he's put to work on a very tough body of material."
And what always happens in this stuff, which is understandable, is people want to get to the value-laden issues, you know, are you for or against some very emotional kind of issue. And the Court is going to decide those cases. But most of those areas are pretty well settled now in many ways. The applications aren't but -- you know, is the death penalty unconstitutional? The Supreme Court has rejected that argument over the last 25 years in 57 cases or something like that. Is abortion protected? The Supreme Court has held, with all of the new appointments and everything as recently as two years ago, that abortion, the core principle about Roe has been reaffirmed.
So I think the hard issues that are about to come are not going to be sort of value issues that are to some extent the bite of the '60s and '70s.
Q Even with those new technology issues, one of the points I brought up earlier is that Judge Breyer with his law and economics training and how he brings that to his analysis of cases is illustrated not just in the antitrust decisions but also if you extrapolate from that and apply those types of law and economic analysis to the new technology, telecommunications, what have you, those issues you just mentioned of the 21st Century, that again he's not for the little man or for the common man.
MR. KLEIN: I don't see that. Let's take these sort of risk issues that come up. I mean when you look at pollution abatement, on the one hand -- I mean the question, which I think everyone would agree with this, the question is in a society of limited resources how do you best deploy those resources to tackle an enormous amount of competing problems. And this is, again, this is not necessarily the work of the -- but the work of an author or so forth where he points out that there are monies we can spend on child health prevention.
Now if you look at -- if the only issue you say to me is, "How far do we go on pollution cleanup?" My answer to you is if that's my only concern we go as far as we damn well possibly could because I think that's where we ought to be.
If you say to me, "Where do you go on that compared to child health and preventive issues?" I say to myself, that's all --I mean that's all he said. Now if that's not for the little guy, I just am missing something --
MR. SLOAN: The other thing in terms of his public record and that I think is important is that he has squarely rejected the notion that economics is kind of a sole determinate whether it's antitrust or other areas. There's a debate that he had with Judge Bork where he was very explicit that economists and economics do not have all the answers and do not control all the anti-trust issues, and he wrote I believe it was a book review with respect to -- respect to AIDS policy and other health policies where he said that it's very clear that on public health issues and other issues, the economics and economic analysis is not the controlling factor when society makes value judgments there.
So I think it's a mischaracterization to just kind of say that he's way out in the -- economic school. In fact, his public record reflects taking issue with that view --
Q And how have you advised him to deal with that issue since there is that contrarian view about him with regard to those types of issues?
MR. SLOAN: Well, I think at one point, as Joel indicated, he is very engaged and enthusiastic in this process and I think that he is clearly his own best adviser and he knows his public record, he knows these issues and he's very engaged in that. So he'll work them through.
Actually, one thing about his record and involvement in public issues, the one point I want to make in light of Ken's comments earlier about his background and the kinds of things that he has done, another way of looking at his career is that his entire career and everything he's done has been devoted to public service and grappling with public issues, first as a law clerk to Justice Goldberg, then as a young lawyer at the Anti-Trust Division at the Justice Department, then as a teacher of law. And as a teacher and scholar who has focussed on complex public law issues that have a very direct and concrete impact on the lives of thousands of people, he's focussed on those kinds of difficult regulatory issues that not everybody jumps into but that will be extremely important in the 21st century and are extremely important now.
His different stints on the Judiciary Committee; he worked in the Watergate special prosecutor's office for a while and then as a judge. So really his entire career has been in the realm of public service and grappling with public issues.
MR. KLEIN: -- pick up on that one issue, return to the question that you raised about pragmatism. It seems to me that everybody wants the sort of new late 20th century constitutional theory, that which seems to me to be, on the one hand, the debate between Scalia and the pragmatists, but I would again say if you look at the issues that are going to come to us in the 21st century, I bet the more important debate, we will conclude, is the debates about statutory interpretation and regulatory and administrative issues.
I mean, I think most of the Supreme Court's docket, even though it's not necessarily the four or five cases that are going to get the most lift, but most of the Supreme Court's docket is going to be focused, as it has been in the past; and I think if you look at his work in those areas -- and certainly Scalia is protagonist on the issue of statutory interpretation, having benefitted from being on the committees and so forth -- he has a view of the operation of the administrative state, all of which, will, I think, once he is no longer a Court of Appeals judge, will begin to flower into, I think, what one would fairly say is a pretty broad -- (inaudible). That's my prediction. I can't guarantee --.
But I do think again, I think if you look at -- I would say to you, in all candor, that constitutional law has not been the heart of this man's legal work. He's had some opinions on it, on issues that are reasonably controversial -- on the gag rule case, which is an intersection of the abortion and the First Amendment, on some of the issues of race-conscious or gender-conscious remedies and so forth -- all of that. But I don't think that, in fairness -- (inaudible). And even though that's the work that most of the public is familiar with. But I think that in the areas that control much of the Court's docket and a lot of the things that will, I think, become very controversial in the 21st century, how you interpret the Religious Freedom Restoration Act, which may well eclipse, in many people's eyes, the issues that are under the First Amendment itself, those are going to be important issues --
Q On the grand theory question, The Vice President said that he was happy with Justice Ginsburg's record, but the most interesting thing we learned during the term is that she really does not believe in substantive due process, except for the privacy area, just very, very dramatic rejection of that. I wonder if you think that Judge Breyer does and whether --
MR. KLEIN: Where do you think that she doesn't believe in substantive due process?
Q In Albright. In the Albright case, she specifically said that outside of privacy, it should be rejected -- punitive damages case, she rejected it; in the property rights -- she rejected it. It was just a remarkable thing.
THE PRESS: Thank you.
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