Breyer's Bicycle Accident Not His First

      Justice Stephen Breyer's bicycle accident [April 26] came 20 years after a more serious biking mishap that may have played a part in his failure to win an appointment to the Supreme Court when he was first considered for a vacancy in 1993. Here's my account from The Supreme Court Yearbook 1993-1994, the year that President Bill Clinton did choose him for the seat being vacated by Justice Harry A. Blackmun:

      Stephen Breyer had a bad year—at least a few bad days—in 1993. First came the bicycle accident. The longtime federal appellate judge, who regularly biked between his work at the U.S. courthouse in Boston and his home in adjacent Cambridge, was hit by a car as he was crossing Harvard Square. Breyer was hospitalized with a punctured lung and broken ribs.
      A week later, still in pain, Breyer left his hospital bed to go to Washington for a job interview—not just any job interview but a face-to-face meeting with the president of the United States about a vacancy on the Supreme Court. Breyer went into the session with President Bill Clinton on June 11 as the favored choice to succeed retiring justice Byron R. White. But somehow Breyer left Clinton cold. Aides later said the president found the former Harvard Law School professor detached and didactic.
      After the Friday afternoon meeting Breyer lay down on a couch in the White House counsel's office to rest. He was told to begin preparing an acceptance speech. But three days later, after a weekend of leaked stories that Breyer had failed to pay Social Security taxes on a household worker, Clinton settled on someone else for the Court: Ruth Bader Ginsburg, a judge on the federal appeals court in Washington, D.C.
      Ginsburg had won the president over with her life story of fighting and overcoming legal discrimination against women. Breyer's more conventional career paled by comparison. Passed over, Breyer returned to his judicial duties in Boston. In August he gamely came to Ginsburg's swearing-in ceremony.
      The episode was a rare setback for Breyer, and by all accounts he handled it well. When another Supreme Court seat opened up in April 1994, Breyer was naturally circumspect. When reporters asked him about his chances of succeeding the retiring justice Harry A. Blackmun, Breyer responded blandly. It was an honor to be considered, he said, and he had been considered before.
      Indeed, Breyer's chances started as slim. Clinton began with other candidates in mind: Senate Majority Leader George Mitchell, who had already announced his plans to leave the Senate at the end of the year; Interior Secretary Bruce Babbitt, who had been at the top of the short list a year earlier; and federal appeals court judge Richard Arnold, a respected jurist and a personal friend of Clinton's from his home state of Arkansas.
      One by one, however, the leading contenders fell by the wayside. Mitchell took himself out of consideration, saying he needed to devote full attention to his Senate duties, including shepherding the president's health care plan. Babbitt fell victim to sniping from some Republican senators— and to the likelihood of a more difficult confirmation battle over his successor at Interior. Arnold was crossed off the list because he suffered from lymphoma, a form of cancer, which Clinton feared might cut short his tenure on the Court.
      Finally, on May 13, after thirty-seven days of embarrassing public vacillation, Clinton turned to Breyer. “He was the one with the fewest problems,” White House counsel Lloyd Cutler told reporters in a background session afterward. Clinton announced his selection late Friday afternoon on the White House lawn to a press corps impatient after five days of rampant speculation. The announcement, just in time for the evening newscasts, averted another news cycle of criticism about the delay. Breyer was still in Boston. His formal presentation to the White House press corps had to wait until Monday.