Deputy Solicitor General: Breyer “Is a Rather Cold Fish”

by Ed Whelan

Having been very involved, as a Senate Judiciary Committee lawyer for Senator Orrin Hatch, in the confirmation processes for Justice Ginsburg and Justice Breyer in 1993 and 1994, respectively, I’ve noted with interest the Clinton presidential library’s release last week of some documents (229 pages in total) related to the Ginsburg and Breyer nominations.

As the Wall Street Journal’s Jess Bravin noted on Friday, one nugget in the release is a June 7, 1993, memo in which Ian Gershengorn—who was then a junior associate at the law firm of Jenner & Block—condemns Breyer as “a rather cold fish”:

There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.

Gershengorn’s disparaging assessment is attracting attention primarily because Gershengorn, in his current capacity as the principal deputy solicitor general, is now arguing cases to Breyer and the other justices.  But beyond the embarrassment Gershengorn is (unpersuasively) trying to extract himself from, I’d like to focus more broadly on what Gershengorn’s assessment, and similar assessments in other released documents, reveal about how he and others on the Left view judging.

It’s especially telling that the two-sentence excerpt quoted above leads off the conclusion section of Gershengorn’s nine-page memo on Breyer’s appellate decisions on civil rights. (Gershengorn co-authored the memo with Tom Perrelli, who was associate attorney general during President Obama’s first term. The memo begins on p. 139 of the release.) It is clear in context that displaying “heart and soul” is what Gershengorn regards as most important in a justice. Indeed, not one word of Gershengorn’s three-paragraph conclusion touches on the soundness of Breyer’s legal reasoning.

In his opening “General Impressions,” Gershengorn complains that “it is all but impossible to imagine [Breyer] being an innovator on the Supreme Court on [civil-rights] issues.” (Emphasis added.) Yes, he “may well be fair and impartial,” but that’s not enough: “he brings no passion or insight into the field.” Indeed, “there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice.” (Emphasis added.) Gershengorn complains that Breyer “applies the rules in a dispassionate manner” and “clearly prefers the plodding application of law to any effort to reach substantive justice.” In this terrible failing, Gershengorn concludes, Breyer “is certainly a judicial conservative.”

I don’t mean to single out Gershengorn. Another memo in the newly released set states that a “theme that … does seem to emerge, from the reactions of quite a few lawyers in this firm [Wilmer Cutler] to what they have read, is what we might call ‘bloodlessness.’” It complains that Breyer’s cases seem “devoid of emotion and even—though this surely stretches the point too far—humanity.”

In another memo, Donald Verrilli, now the Solicitor General, observes that a “consistent reaction among reviewers was a sense of disquiet about the extreme detachment in Judge Breyer’s opinions.” Complaining about Breyer’s failure to display “any deep convictions or passions,” Verrilli observes that “it is difficult to imagine Judge Breyer as the author of the next Brown v. Board of Education.”

And yet another memo complains that Breyer’s “admiralty opinions [!] reveal a detached and unemotional jurist who seems to be more interested in somewhat mechanical, even-handed application of the law than in notions of fairness.”

The bottom line, I’ll acknowledge, isn’t news to anyone who has been paying attention in recent decades: The Left doesn’t want judges—yes, not even in admiralty cases—who “appl[y] the rules in a dispassionate manner.” It instead wants judges who indulge their “heart and soul” and their “innate sense of justice.”