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The Intrigue Behind How Stephen Breyer Became A Federal Judge
Ted Kennedy blocks Jimmy Carter from nominating a Puerto Rican woman to First Circuit
Okay, let’s get this right.*
Stephen Breyer would never have been a candidate for the Supreme Court vacancy that arose in 1994 if he hadn’t already been a federal judge. Breyer was very lucky, and benefited from the extraordinary generosity of my former boss Orrin Hatch, in getting appointed to a First Circuit vacancy late in 1980. But the surprising reason that the vacancy even existed provides a stark illustration of the strange politics that can sometimes complicate judicial nominations.
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In 1979, Breyer became chief counsel to new Senate Judiciary Committee chairman Ted Kennedy, even as he continued in his capacity as a Harvard law professor. Breyer had first started working for Kennedy in 1974, as his special counsel on administrative-law issues, and had been a consultant to him since then. He had earned Kennedy’s trust and respect, and now he was Kennedy’s right-hand man.
Kennedy was taking over the chairmanship of the committee from James Eastland, a Mississippi Democrat and longtime segregationist. The Omnibus Judgeship Act of 1978, 92 Stat. 1629, signed into law by President Jimmy Carter in October 1978, created 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Kennedy was eager to help Carter fill those new seats, and other vacancies, with liberal judges.
On Election Day in November 1980, Ronald Reagan trounced Jimmy Carter, winning 489 electoral votes (44 states, including New York, California, and Massachusetts) to Carter’s 49. Even more astonishing, Republicans gained twelve seats in the Senate—jumping from 41 seats to 53—and won control of that body for the first time since Dwight Eisenhower’s first two years as president in 1953 and 1954.
So Breyer would soon return full-time to his teaching post at Harvard law school. Or so one might have thought.
Instead, Kennedy managed to get Breyer appointed to a First Circuit seat in the lame-duck session.
Stuart Eizenstat, who was chief domestic policy adviser to Carter, relates that Kennedy called him after the election to urge Carter to nominate Breyer. (Eizenstat recalls that the call from Kennedy came “a few weeks after” the election, but the chronology shows that it couldn’t have been more than a few days.) Eizenstat was “flabbergasted” and told Kennedy that “two hurdles seemed insurmountable”:
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."
Carter nominated Breyer on November 13, 1980. Even before the nomination was made, Kennedy was already lining things up to get Breyer confirmed in the handful of weeks before the new Senate convened. If Breyer’s confirmation were handled in the ordinary course, there simply wouldn’t be enough time. And with Republicans soon to take over the Senate, Kennedy didn’t want to override the committee’s established practices and thus create a precedent for Republicans to follow. So Kennedy needed Republicans to agree to expedite Breyer, at the obvious cost of depriving Reagan of the opportunity to fill the seat.
Breyer had won the respect of Republican senators on the committee. As Hatch put it (in a footnote in his book Square Peg**), Breyer “was intelligent, honest, and fair, always more than gracious to the Republican members and staff.” Hatch was always eager to help people he liked. So when Kennedy asked Hatch to intervene with Thurmond, Hatch did so and persuaded Thurmond to allow the nomination to race through the committee.
On November 17—just four days after the nomination—Breyer had his confirmation hearing. That very day, the committee reported the nomination to the full Senate.
On expedited review, the American Bar Association’s judicial-evaluations committee rated Breyer as “Qualified” for the nomination. (A “substantial minority” of the committee members would have rated Breyer “Well Qualified.”)
On December 9, the Senate confirmed Breyer’s nomination by a vote of 80 to 10. (Of the ten negative votes, four were from Democrats and six from Republicans.) No other judicial confirmations took place in the lame-duck session.
In sum: Carter nominated Breyer to the First Circuit just nine days after he lost his bid for re-election, and the Senate, with overwhelming support from Republicans, confirmed that nomination just 26 days later. And all of this occurred just weeks before the Republicans would take control of the Senate and Reagan would be inaugurated as president.
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I had long assumed that the First Circuit vacancy to which Breyer was appointed must have arisen in the few weeks or months before the 1980 elections. I was quite surprised to notice a fact hiding in plain sight: the seat had been created by the Omnibus Judgeship Act of 1978 and had been sitting empty, without even a nominee, for more than two years.
Carter had moved expeditiously to fill the new seats that the 1978 law created. For the 35 new federal appellate seats, he had made 33 nominations in 1979 and a 34th in April 1980. The Senate had confirmed 30 of these nominations in 1979 and three more before Election Day in 1980.***
Bizarrely, the single seat that Carter hadn’t even made a nomination for was the newly created seat on the First Circuit. Then as now, the First Circuit had Massachusetts as its largest state and was based in Boston. So Kennedy, one would have thought, would have had a special interest in ensuring that the seat be filled.
How could this seat remain empty, without even a nominee, for more than two years?
The answer, it turns out, is that Carter and Kennedy had very different ideas of who should fill the seat—and that Kennedy’s presidential ambitions exacerbated relations between the two.
Carter placed a high priority on filling federal judicial vacancies with demographically diverse candidates. Before Carter became president, only 10 women and 35 racial or ethnic minorities had ever served as federal judges. During his single term, Carter appointed to the bench 41 women and 57 racial or ethnic minorities. (Data drawn from Federal Judicial Center’s Biographical Directory of Article III Federal Judges.)
In addition to its four New England states, the First Circuit included Puerto Rico. Indeed, Puerto Rico accounted for more than 20% of the First Circuit’s caseload. But the First Circuit had never had a judge from Puerto Rico, nor had it ever had any female or minority judge. So the White House had special interest in the candidacy of Puerto Rican law professor Miriam Naveira.
But Kennedy had already firmly settled on his own candidate, the distinguished Harvard law school professor Archibald Cox. Cox had decades-long ties to the Kennedy family. Then-Senator John F. Kennedy had consulted him on labor relations as early as 1953, and Ted Kennedy had shrewdly engineered Cox’s selection as Watergate special prosecutor in 1973.
The nominations panel that Carter had set up to advise him on candidates for First Circuit vacancies was dominated by Kennedy loyalists. Under Carter’s executive order that established these nominations panels, a panel was to recommend the five persons best qualified for a vacancy. But instead of just providing Carter a list of five candidates, the panel, in what the Washington Post called a “depart[ure] from standard practice,” ranked the candidates. It recommended Cox as the best choice, and it relegated Naveira, his leading competitor, to the fifth and last place on its list.
In addition to being a patrician white male, Cox turned 67 in the spring of 1979. Naveira was 44.
In the summer of 1979, the White House informed Kennedy that Carter would not nominate Cox. According to the Washington Post, the White House’s stated reason was that the American Bar Association’s guidelines recommended against nominees older than 65. But Carter also knew that Kennedy was exploring running against him for the Democratic nomination for president in 1980. “Kennedy allies construed the rejection of Cox … as a political slap at Carter’s potential presidential opponent.” Kennedy was livid:
Kennedy is angry enough, sources say, to consider holding up in his Judiciary Committee appointment of whomever the White House picks. That, chuckled one White House aide, may create its own embarrassment for the Massachusetts liberal, since sources say Carter now favors Miriam Naveira, a Puerto Rican woman, also recommended by the panel, for the prestigious position on the 1st U.S. Circuit Court of Appeals.
Carter and his White House team were, in turn, angry at what they regarded as Kennedy’s “inappropriately intense interest in the Cox appointment,” along with threats of retaliation if Kennedy didn’t get his way.
The bad blood spilled over into 1980. In the spring of 1980, Carter purged the Kennedy loyalists from his nominations panel. The new panel recommended six candidates, including three Puerto Ricans—but not Cox. A Boston Globe columnist reported in July 1980 that no nominee could be confirmed before the election. Among the obstacles: Kennedy “wants a Massachusetts person and not a Puerto Rican for the slot” and “is still seething at the President for his dismissal of the eminently qualified Cox and has no disposition to hurry the necessary confirmation hearings.”
In September 1980, Kennedy recruited Breyer for the seat, and Carter’s nominations panel quickly added him to its list of recommended candidates. Kennedy and Breyer were surely hoping that Carter’s re-election would allow Breyer to be nominated and confirmed in the ordinary course. But Carter’s loss to Reagan dramatically accelerated events: If Carter was going to have any chance of filling the First Circuit vacancy, he had no choice but to bow to Kennedy’s request to nominate Breyer forthwith.
* * *
Jimmy Carter gave demographic diversity a very strong emphasis in his judicial selections, and Ted Kennedy was a vocal supporter of that emphasis. Yet when it came to the lower-court vacancy that Kennedy cared most about—a newly created First Circuit seat—Kennedy blocked a Puerto Rican female from getting the nomination. He first tried to deliver the nomination to one old white male patrician ally (a very talented ally, to be sure). When that effort failed, he blocked any of the three recommended Puerto Rican candidates from being nominated. He then succeeded in delivering the nomination to a younger (42-year-old) white male ally (again, a very talented ally) who had married into the British aristocracy.
If Carter had succeeded in appointing Miriam Naveira (or either of the other two Puerto Rican candidates) to the First Circuit, Stephen Breyer would never have been appointed to the Supreme Court. Ditto, of course, if Senate Republicans hadn’t paved the way for Breyer’s expedited confirmation in the lame-duck session.
Miriam Naveira ended up serving on the Supreme Court of Puerto Rico for 19 years—the first woman to do so—and finished her tenure as its chief justice.
In 1984, Ronald Reagan appointed Juan Torruella as the first Puerto Rican judge on the First Circuit (and the first on any federal court of appeals).
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* I published a version of this post a week ago but promptly depublished it when I discovered that I had messed up a big part of the story.
** Hatch’s (evidently ghostwritten) account suffers, alas, from a big error. The footnote gives the impression that Carter had nominated Breyer much earlier in 1980, and it states that “his nomination got bogged down as the Senate prepared for the coming presidential election.” In short, it misses that the Breyer nomination happened only after the election; far from ever being “bogged down,” it moved with remarkable speed.
*** Carter made a nomination in 1979 that was never confirmed, that of Andrew L. Jefferson Jr. to the Fifth Circuit.