Don't ask U.S. Supreme Court Justice Stephen Breyer about the process for nominating a new member to the nation's highest court.
"Asking me about that process is like asking for the recipe for Chicken à la King from point of view of the chicken," Breyer said during an hour long talk Thursday at the Edward M. Kennedy Institute for the United States Senate in Boston. "It's a political process in terms of nominating and confirming [a justice]."
While not specifically commenting on the upcoming confirmation process for President Trump's Supreme Court nominee Amy Coney Barrett, Breyer did say that high court justices should not make decisions based on politics — even, or perhaps especially, during times of deep political division.
"If you want to go into politics, be a politician," Breyer said. "We have to stay out of it. The people on both sides have to have the confidence that you, as a judge, are a fair person."
Breyer added that after a confirmation, presidents often learns that their Supreme Court nominees don't always agree with the White House's views.
"It may be a political process that leads to a nomination and a president may think: 'I've got someone who agrees with me.'" Breyer said. "That's what Theodore Roosevelt did with Oliver Wendell Holmes and three months into his term Holmes issued a ruling and Roosevelt was furious. But Holmes was doing his job."
(Holmes served on Massachusetts' highest court before Roosevelt nominated him to the U.S. Supreme Court in 1902. Holmes' dissent in an anti-trust case led Roosevelt to famously say that he could "carve a stronger backbone from a banana.")
While careful not to talk about current cases that may come before the court involving abortion or health care, Breyer emphasized that precedents should only be overturned in rare instances, saying the court should work toward stability in federal law.
Breyer said he has heard cases where he disagreed with the original ruling, but resisted the temptation to overturn it. But he also said there are exceptions, such as Brown v. Board of Education, the Supreme Court ruling against racial segregation in schools.
"Were they right to overrule that? Of course they were right," Breyer said. "It was bringing in some justice in an area where there was no justice, and that's what the court is about. But that is unusual. Don't generalize from the fact you can do it once, so they do it all the time."
When he reviews the thousands of cases referred to the Supreme Court each year, Breyer said he looks at the lower court rulings to decide whether the high court needs to settle an issue at the federal level.
"Ninety-nine percent of the time I'm looking to see if there is a split," Breyer said. "I look almost entirely to see if lower court judges come to different conclusions on the same question of federal law. If they've all come to the same conclusion, [then] why us?"
Breyer admitted that the U.S. legal system is "far from perfect " and that those with resources get cases before the high court far more often than those without them. But he said Supreme Court justices are tasked with focusing on the law, sometimes despite what the "exigencies of the moment might call for."
"Law is not computer science where there is one right answer," Breyer said. "The law is an effort to allow 330 million Americans to live together harmoniously and productively. That's tough in many cases. That's the legal job."
Breyer said he disagrees with labeling the court "liberal" or "conservative," pointing out that 40% of the cases decided by the Supreme Court are unanimous.
The 82-year-old Breyer has been on the court since 1994, when he was nominated by former president Bill Clinton. He is a former professor at Harvard Law School and worked on the U.S. Senate Judiciary Committee and with the late Sen. Edward Kennedy.
The discussion at the Edward M. Kennedy Institute was moderated by Ari Melber, an attorney and host of The Beat with Ari Melber on MSNBC. 2,000 people registered for the virtual event, which the Kennedy Institute said made it the single largest audience for one of its events.
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