Bill Clinton's two Supreme Court selections, Ruth Bader Ginsburg and Stephen Breyer, while pro-choice, are unflinching corporatists, particularly Breyer. Ginsburg, who had served for 13 years on the US Court of Appeals for the District of Columbia, regularly locked arms with her colleague Antonin Scalia in voting pro-business, and has continued that performance in the Supreme Court.
Stephen Breyer's pre and post-confirmation career could be summed up as one of opposition to effective regulation of business. Indeed, shortly after Breyer was selected by Clinton in May of 1994, Ralph Nader told U.S. News & World Report that Breyer was "hostile to regulatory law enforcement" and that Clinton had thereby "locked the court into an anticonsumer, antiworker, antienvironmental mode." Nader, unfortunately, was quite correct.
In the late 1970s, Breyer served as chief legislative counsel to Senator Ted Kennedy in the Judiciary Committee, and was the prime architect of airline deregulation in 1978. Breyer, using an allegedly "objective" mode of economic analysis, claimed that deregulation would result in increased competition, lower airfares, and more flexible airline service. As could be expected, the reality came to be the opposite: higher airfares, increased business concentration, reduced flight service and choice of destinations.
In 1979, Breyer authored an influential article in the Harvard Law Review, promulgating the tired business line that the best way to deal with environmental hazards was to implement market mechanisms in which companies could trade pollution "rights." Alexander Cockburn explained it best four years ago: imagine a country was divided into zones, with a pollution index in each zone. Companies in each zone would be allowed to pollute within a certain permissible limit. If Company X used only 25 percent of its pollution "rights", it would be allowed to trade its remaining 75 percent to Company Y in the same area that had already reached its limit. Though people next to Company Y will face higher levels of pollutants, Company Y would technically not be exceeding regulations.
Breyer's theory was incorporated into the Clean Air Act of 1990. As Cockburn reports, "In May 1992, the Tennessee Valley Authority bought an estimated $2.5 million worth of credits from Wisconsin Power and Light, which didn't need them. These credits allowed the TVA to exceed its limit of sulfur dioxide and other toxic emissions. On the receiving end was Shelby County, Tennessee, which . . . ranks 22nd among all counties for excess deaths from lung cancer. On the trading end, Sheboygan County, Wisconsin, ranks 28th from the bottom in the same category, an almost perfect reverse, mirroring the transfer of poisons from North to South."
In the 1980s, Breyer served on the US Court of Appeals for the First Circuit. From 1978 to 1988, Breyer made a number of investments with a syndicate of Lloyds of London, the insurance giant that insures many companies against pollution liability. At the same time, environmental lawsuits were costing Lloyd's billions of dollars in losses and bankrupting investors. Starting in 1980, a number of US courts dramatically increased the claims against many Lloyd's syndicates, particularly asbestos-related claims and Superfund claims. These court decisions resulted in a shift of the burden of proof in an injury suit to the defendant. The US Superfund law was, in the minds of targeted firms, causing enormous damage awards against companies that were insured by these syndicates. Under British law, an investor is responsible for paying his share of losses. Even if that investor sells his shares, he remains liable for damages from when he was a member. Even after Breyer dies, claims can be made against his estate for eternity.
Judges have the power to shape and change American tort law, and therefore Breyer, faced with a potential loss of over $1 million, has a personal interest in any case that comes before him that deals with environmental and personal injury tort claims. By law, judges are supposed to recuse themselves from cases in which they have a personal interest. Breyer failed to recuse himself in eight Superfund cases during the mid-1980s. During his Supreme Court confirmation hearings, Breyer claimed he wasn't knowledgeable about what type of investments Lloyds was involved in, and therefore felt no need to recuse himself. The majority of the Senate bought into his dubious defense.
As the Multinational Monitor editorialized, "The appointment of Justice Stephen Breyer marked the ascendancy to the top of the judicial hierarchy of the cruel practitioners of 'risk-benefit analysis.' Justice Breyer has involved risk analysis to belittle environmental and health and safety risks and to overstate the costs of protective measures." Since Breyer's appointment to the high court, he has continued to be a strong supporter of big business, his possible conflicts of interest completely ignored.
Indeed, Clinton's appointments were intended to be safe bets in the face of a Senate Judiciary Committee headed by Republican troglodyte Orrin Hatch and a Republican-dominated Senate.
On Wed, 29 May 2002, Nathan Newman wrote:
> ----- Original Message -----
> From: "C. G. Estabrook" <galliher at alexia.lis.uiuc.edu>
>
> >That seems to be the alternative: the "liberal"/Breyer wing will
> >deregulate corporations (e.g., airlines) to do what they want, and the
> >conservative/Scalia wing will deregulate the states to do what they want,
> >both frustrating any effective popular action through the federal
> >government. If that's the choice, I'll take Nader... --CGE
>
> Breyer has defended lawsuits againsts rapists under the Violence
> Against Women Act (struck down by this Court), defended regulations to
> force coal companies to pay for the health care of miners of old mine
> companies they acquired (struck down by this Court), defended
> environmental racism lawsuits against states (struck down by this
> Court), defended age and disability lawsuits against states (struck
> down by this Court), defended workers against being forced into
> employer-run arbitration against their will (enforced by this Court),
> and this list goes on and on.
>
> Name one decision where Breyer has overruled a federal law protecting
> workers, voters or citizens. He's done a few interpretations of the
> law that I disagree with, but, frankly, some were probably what
> Congress wanted, however much I disagreed with both them and Breyer.
> And none of his decisions couldn't have been overturned by a new law
> passed by Congress.
>
> What folks don't get is that these new decisions frustrate any
> legislative action, period.
>
> -- Nathan Newman
>
>