With Liberty and Justice For All

Daily Pennsylvanian: Has your life returned to normal after the Supreme Court episode? And what are you doing now?Daily Pennsylvanian: Has your life returned to normal after the Supreme Court episode? And what are you doing now?Breyer: Yes, I'm back doing my job and my future is continuing to do my jobwhich is the chief justice for the circuit which is a very interesting job which I enjoy. Daily Pennsylvanian: Has your life returned to normal after the Supreme Court episode? And what are you doing now?Breyer: Yes, I'm back doing my job and my future is continuing to do my jobwhich is the chief justice for the circuit which is a very interesting job which I enjoy.DP: You were a figure in Washington politics long before this past summer. I understand that you were involved in the Watergate hearings...Daily Pennsylvanian: Has your life returned to normal after the Supreme Court episode? And what are you doing now?Breyer: Yes, I'm back doing my job and my future is continuing to do my jobwhich is the chief justice for the circuit which is a very interesting job which I enjoy.DP: You were a figure in Washington politics long before this past summer. I understand that you were involved in the Watergate hearings...Breyer: I wouldn't say I was a figure in Washington politics. Before I became a judge, I was a professor at Harvard Law School and I worked in various staff capacitities during that time on things in Washington. We were most well known the first time for our hearings on airline regulation, which had lowered fares but had also produced a certain amount of congestion. I found it very interesting. The airline regulation, I think, was one of the most interesting because it was an effort -- what we were trying to do in that instance was to lower fares. I remember when Senator [Ted] Kennedy was having hearings on that, we went to Boston. One of the women in the audience who was from East Boston said, "Why are you having hearings on airlines. I've never been able to afford to fly." And we said, "That's why we're having hearings on the airlines." And the result of that, particularly from the point of view of students is that they can leave to fly home to see their parents. Now whether or not that's a plus for them I'm not sure. You've got to realize how many different groups there are in this country with different views on different public issues and how difficult it is to gather a consensus, but for most policy change a consensus is necessary. Our government system is one that depends upon consensus to function effectively. DP: Do you feel that you learned quite a lot about Washington? Breyer: I learned quite a lot about government. The legislative process is a very interesting process. It allows you to see what a diverse country it is, what a diverse city it is with people who have very different points of view. They have lived together, worked together, and the legislative process is part of that and you should see how difficult it is to get it to work properly and at the same time how necessary that it is possible. DP:About your confirmation hearing, there have been a number of different accounts of why you were not nominated [for the Supreme Court.] Which is right? Breyer: Well, I felt after the event, that the President's choice is a very good choice -- in fact, an excellent choice. I also thought that I was quite lucky and quite honored to be considered and that's really all that I know of it. I liked all of the people that I met and they were very interesting. I would have preferred to have been nominated, obviously. Nonetheless, it was an honor to be considered and I think that the process worked well to come up with a nominee that is an excellent and well-qualified person. DP: What did really happen in that infamous meeting that you had with President Clinton? Breyer: Well, we talked and?there is no particular secret. There's nothing that doesn't meet the eye. People can make up their own minds or side or characterize or whatever and I think we simply see that process working itself out. DP: How do you feel about the vetting process? Breyer: I have no complaints. I've spoken to reporters and basically told them the same thing that I'm telling you. DP: What do you think about the story that came out of Washington that you were in fact dropped because of your social security tax payments? Breyer: What I think about the process is that it ended up with an excellent nominee. I think that I was very lucky to be considered and those are really my thoughts on the process. DP: Do you feel that in any way you were treated unfairly by the media? Breyer: I think that they ended up with a really outstanding person. I know [Justice Ruth Bader Ginsburg]. I know her family, I like her, I respect her as a judge?and I found it a very interesting experience. Everything seemed to be descending at once -- it was really quite exciting particularly to see about 400 reporters camped outside my door! I had not really been through a process like that before? and in retrospect I'm obviously pleased to have the opportunity that I did have. DP: Did it give you a different view on the media at all? Breyer: Oddly enough, I realized that they have a rather difficult time keeping up with events and having seen their efforts to do that, I was impressed with the way that they were able to keep up with ever-changing circumstances. They don't necessarily always get everything right, but given the pressures on them as well as on other people? DP: It's been said that [Former White House Deputy Counsel] Vincent Foster was the person that pointed Clinton towards you as a possible nominee. Do you know Foster? Breyer: No, I don't. I don't know how that story began. DP: What is your opinion on the direction that the Supreme Court is going in? Breyer: I read the cases?and try to apply them to my court. As far as my court is concerned, which is the first circuit, I find it very interesting. Like all appellate courts, we have an enormous work load. The number of cases grows every year, the complexity of the law grows continually and it's a challenge, given the complexity of statutes and case law, given the opinions and make sense of that law, to make sense so that people who are not lawyers can understand and sense in terms of a body of law that works to the advantage of the average person. Somebody like you or me or anybody else can read the appellate decisions and hopefully understand that we're somehow working to make a better life for whoever lives under that rule or system. That's a considerable challenge. It's a challenge for every judge in any appellate court and that's what we try to do. DP: What do you consider the main issues facing your court now? Breyer:One problem is, like all federal appellate courts particularly, is there has been a tremendous increase in the number of cases and the Congress has more and more statutes. And it becomes more and more complicated and the time of day stays the same - 24 hours. And so you want to be certain that each case in front of every court involves human beings to whom that case is extremely important. And a court is really one of the few places which work according to the 12th grade civics book. That is if the judges do what they're supposed to do, and that is decide the case fairly and in accordance with the law. If you multiply the number of judges infinitely, you will get confusion. For every additional few judges you appoint to an appellate court, your additional points of view, the law becomes more complicated. Working in that environment in order to produce results that are sensible and fair in the individual case is a challenge. DP: Is there a realistic way to balance the incredible volume of cases with trying to keep the human emphasis? Breyer: Well, different courts have taken different approaches to that. What tends to happen is the cases rougly get divided into those that go to full hearings and those than have less than full hearings. Less than full hearings will probably consist of cases that are factually oriented and that have no significant legal issue in them, but they still get reviewed. They get reviewed in a less personalized way. I was just looking at statistics this morning that show that more cases are being decided that way, about half of them. That's a possibility, that's one way you can deal with it and another is that you can appoint many more judges. There are procedural things which I grant you are not to be trusted. I won't talk about trust, we're not going to get your readers extraordinarily interested in legal procedures, though it is interesting. DP: What direction would you recommend that law students now go in in terms of developing a focus? Breyer: Well, they're going to have a qualification they're going to have a degree. That degree will make them technical experts. How they can use that expertise is to help other people. There are a lot of ways to help other people, many ways. There is nothing wrong with going into a law firm and just working in that firm. But they ought to remember that what they are valued for is their professional ability and they are lucky to have that ability, I'm lucky to have that ability. I think the most satisfactory thing over the course of people's lives is to use that professional experience in a way that to a considerable degree helps others. They'll end up graduating from law school and they'll go into law and then life sort of catches up with them and they have a hard time remembering that, so I just say that it's a good idea to remember that. DP: There are all these surveys done saying that college graduates go into law school as a refuge from reality for humanities oriented students, however temporary the refuge may be. Do you see the tremendous number of lawyers as a problem? Breyer: They might become lawyers by default, there's nothing particularly wrong with that-- although they ought to realize that when they go in they will end up lawyers. And one problem for students when they go to graduate school is most of their experience consists of whatever their families happen to do in life, plus friends of their family, plus professors. They have a limited exposure and sometimes don't realize the enormous breadth of opportunity in all kinds of different fields. Whether it's journalism or photography or law or medicine or business, there are vast opportunities and so I would say whoever wants to go to law school should realize that probably he or she is going to end up being a lawyer. While that's a fine thing to be, it isn't the only possibility. DP: There seems to be a pretty strong public sentiment especially recently against lawyers, do you think that that's unfair? Breyer: A little bit, I think in a way it's like blaming doctors for disease. I mean the reason that you have a lot of lawyers is because law is complicated and if there are lots of statues and lots of cases and lots of rules and lot's of controversy, then the lawyers are there to help. Now they don't all help all the time and that's true of every profession, but by and large they are trying to help their clients sort through this incredible maze of rules that govern how people in this society live. Now the good part of that is that as a country we don't fight each other physically and other countries sometimes do -- what we do is we all follow the rules. We are absolutely wed to it. The bad part of that is that there will be a lot of very complicated rules. Now that I think that is what the large number of lawyers being in existence reflects, it isn't that lawyers as a profession are any worse or better than others. DP: You have played many different roles in the law as a law professor, someone who works in the government, and currently as a judge. What different dimensions of the law have you seen within the context of those roles? Breyer: Oh, I've seen a lot, that's true. You're reminding me, my hair is turning gray! I like the teaching part. It's different, but it all has to do with individual people trying to live together. It's very tough to get people to live in groups together peacefully where they're each contributing to an economy or a culture or society where people will be better off because of that joint contribution. So that's the challenge, you should go out and tell all your fellow students they have to do work non-stop to end societies problems, and they'll say yes but they won't really want to do it. If you say to them you are going to spend you own life thinking about yourself, you'll realize that that's not satisfactory either. So I'd say it takes some kind of combination and the virtue of law is that you think quite a lot about difficult intellectual problems and you have to apply them to real problems in the world. And that's a little bit trite, it's a cliche. It shouldn't be too complicated, the more complicated you get the harder it is to get other people to act towards you or to understand what you're talking about. Considerable needs to try to simplify what you are dealing whether it's in a courtroom, legislative process or the classroom. DP: Do you think that there is a realistic way to do that? We've talked about the over abundance of laws and lawyers. Breyer: Yes, there is, if you think about it. That's the one virtue that law school teaches you. Rather than teaching you to get the main point, if you get the main point of something sometimes you complicate that. For example, the main point of airline regulation was to lower fares, the main point of the sentencing guidelines which I also worked upon is to have fair treatment upon different peoples who are sentenced by different judges, for approximately the same crime roughly similar in their own circumstances. The point of Watergate was to see if high level officials were violating the law. The point of law school is to teach the law. You can say all that's very trite, but nonetheless people keeping an eye on that main point sometimes can help achieve the objective of the enterprise in a way that complexity doesn't help. DP: What made you originally interested in the law? Breyer: I've always been interested probably the same as a lot of students at Penn and elsewhere, my father was a lawyer. So a lot of people do tend to follow what their experience is but I've always been interested . There was never any doubt in my mind. That isn't true of my children, they are very uncertain. DP: Did it turn out how you though it would or how you hoped it would? Breyer: I turned out probably better than I thought it would, because every day I get up I just thank God because what I'm doing is so interesting. And it isn't always interesting but by and large it is. And it's satisfying because you try to be helpful.