The Obama administration’s soon-to-be top Supreme Court lawyer once referred to now-Justice Stephen Breyer as a "cold fish" without an "innate sense of justice."
Ian Gershengorn, the principal deputy solicitor general at the Justice Department, is slated to become acting solicitor general when Donald Verrilli leaves his post later this month. His comments about Breyer were made when the Clinton White House was vetting Breyer for a Supreme Court nomination in 1993, and they made waves when they surfaced in a 2014 document release.
Gershengorn, just out of Harvard Law School in June of 1993, penned a memo with Tom Perrelli that assessed Breyer’s judicial record during his career as a judge on the 1st U.S. Circuit Court of Appeals.
"There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish," Gershengorn and Perrelli wrote to Joel Klein in the White House counsel’s office.
Breyer "would never be a conciliator or a consensus builder on the Court," conservatives would be "thrilled" if he were appointed, and "nothing in his opinions suggests warmth in any way," the attorneys wrote in the memo. "Nothing in Breyer’s opinions suggests that he would be a great Supreme Court Justice."
They said Breyer had "no real interest in the area of civil rights" and that they couldn’t envision him being a "staunch defender" of civil rights.
There is "such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice," they wrote. "He applies the rules in a dispassionate manner and moves on to the next case."
The Clinton White House nominated Breyer anyway, and he was confirmed to the bench in 1994.
Gershengorn’s memo was the source of embarrassment when it was issued in 2014.
"Everyone has regrets from his 20s," The Wall Street Journal quoted Gershengorn as saying after the document was published by the Clinton Presidential Library. Gershengorn was working in the solicitor general’s office at the time. "Suffice to say, I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As [the late Baltimore Orioles manager] Earl Weaver once said, ‘It is what you learn after you know it all that counts.’"
In 1993, Gershengorn was a recent graduate of Harvard Law School working as a summer associate at Jenner & Block, according to The Wall Street Journal. Perrelli was a young attorney at the firm at the time, and the two were in a group of private attorneys the Clinton White House had recruited to analyze potential Supreme Court nominees.
Breyer — then two decades into his tenure as a justice after the article surfaced — sent word to Gershengorn not to worry about it, The Washington Post reported.
As Gershengorn prepares to step up as the administration’s top Supreme Court lawyer — perhaps for the remainder of the Obama administration — legal experts say the embarrassing memo won’t matter.
"It was a long time ago," said Charles Fried, former solicitor general during the Reagan administration and now a professor at Harvard Law School. "Everybody involved is a grown-up," he added.
"I don’t think it’s a big deal," said Jonathan Adler, a professor at Case Western Reserve University School of Law. "Justices don’t hold grudges," he added, at least "not in a way that affects the outcome of a case."
Gershengorn has worked at DOJ since 2009, where he was deputy assistant attorney general in the civil division. He defended the Obama administration’s signature health care law, the Patient Protection and Affordable Care Act, during district court challenges. He took the role of principal deputy solicitor general in 2013.
Gershengorn worked at Jenner & Block from 1997 until 2009. He did his first stint at the Justice Department during the Clinton administration, where he was assistant to then-Attorney General Janet Reno.
"In his two tours of duty with the Department of Justice, Ian Gershengorn has earned a reputation as an exceptionally talented attorney and a gifted defender of the Constitution," Attorney General Loretta Lynch said earlier this month when she announced he would be stepping in for Verrilli.
Click here to read the document release.
