Current Principal Deputy SG Called J. Breyer a “Rather Cold Fish” in Clinton Admin. Memo

WaPo on latest Clinton paper release:

Klein thought Breyer was “brilliant,” but others were not as impressed.  “Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice,” wrote Tom Perrilli and Ian Gershengorn, who called him a “rather cold fish.”

Perrilli later served as deputy attorney general in the Obama administration and Gershengorn is currently  Principal Deputy Solicitor General, arguing regularly before the Supreme Court.

UPDATE: The memo itself on Justice Breyer’s civil rights opinions while on the First Circuit begins on page 139 of this pdf. The memo is quite harsh. It concludes:


There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish. There is nothing in his legal writing that suggests innovation, except perhaps in a few areas of particular interest. Indeed, he shows a distinct lack of interest for most areas of substantive law, including those areas of greatest interest to liberals. He would never be a conciliator or a consensus builder on the Court; not only does he lack interest in many subject matters, but his opinions do not reflect the sort-of verve necessary to build coalitions.
Conservatives will be thrilled if Judge Breyer is appointed. He cannot be described as liberal and more likely falls on the conservative side of moderate. I would think liberals would be very upset at this selection. Besides the specific problems discussed above, Judge Breyer signals no particular change in the Court’s current direction. At most he is another unremarkable voice in the middle which will still be led by Justice O’Connor or perhaps Justice Souter. His personality will also not generate supporters; nothing in his opinions suggests warmth in any way. On the whole, he is probably easily confirmable, despite opposition from the left·. Selection of Judge Breyer may be seen as a sign that partisanship has no place on the Supreme Court, although it may.also appear to be kow-towing to conservatives in the Senate. Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice. It seems unlikely that he would change the Court’s direction or add any new dimension to it. He is a solid, intelligent choice, albeit one with little feeling or passion.


“Everyone has regrets from his 20s,” Mr. Gershengorn said Friday. “Suffice to say, I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’”

His co-author, Mr. Perrelli, said the 1993 memo shows “why you don’t have second-year associates writing evaluations of potential Supreme Court nominees.” Mr. Perrelli spent three years as associate attorney general in the Obama administration, and now is back in at his old law firm, Jenner & Block

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