• By
• Jess Bravin
• CONNECT

Supreme Court Associate Justice Stephen Breyer participates in a panel at the Georgetown University Law Center on April 21, 2014.
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When Deputy Solicitor General Ian Gershengorn argues before the Supreme Court, Justice Stephen Breyer and his eight colleagues sit in judgment. But the roles were reversed 21 years ago, when Mr. Gershengorn helped then President Bill Clinton vet Mr. Breyer, then a federal appeals judge in Boston.

The verdict was severe.

“Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice,” Mr. Gershengorn, then fresh out of Harvard Law School, and another attorney, Tom Perrelli, wrote in a June 1993 memo to White House lawyer Joel Klein. “There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”

The memo was released Friday in the fifth batch of documents from the Clinton Presidential Library, along with 2,000 pages of material that had been previously withheld for legal reasons that no longer apply.

The memo assesses then-Judge Breyer’s opinions in the areas of civil rights, privacy and national security law. It finds it “most remarkable that virtually none” of his rulings turned on substantive issues, instead being decided on administrative or procedural grounds.

“Nonetheless, the dearth of commentary about the substantive issues at stake indicates that Judge Breyer has no real interest in the area of civil rights; it is all but impossible to imagine him being an innovator on the Supreme Court on these issues.,” the memo said.

His decisions are “often reasonable and perhaps legally correct, but 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,” the memo went on.

“Conservatives will be thrilled if Judge Breyer is appointed,” while “liberals would be very upset at this selection,” the memo concludes

“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.

Justice Breyer couldn’t be reached for comment.

Mr. Perrelli said that in 1993 he was a young lawyer at Jenner, where Mr. Gershengorn worked with him as a summer associate. The two were among a group of private attorneys recruited by the Clinton White House to assess candidates for the high court, he said.

President Clinton passed over Justice Breyer for a 1993 vacancy, instead selecting another federal appeals judge, Ruth Bader Ginsburg, for the slot. The following year, however, Mr. Clinton gave him the nod when another court seat came open.

Over the past two decades, Justice Breyer has been a reliable liberal vote on ideologically charged issues, including same-sex marriage, abortion rights and campaign-finance, although he sometimes sides with conservatives on criminal justice. His questions at oral argument often involve complicated hypothetical situations, and his opinions do tend to emphasize logic above style.

But at times he has used forceful rhetoric.

In 2007, Justice Breyer, writing for four liberal justices, slammed the majority opinion barring local school boards from voluntarily adopting race-conscious pupil assignment plans.

“It distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools,” Justice Breyer wrote. “And it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality.”

Such language might have surprised another volunteer vetter, who wrote in a separate memo to Mr. Klein that “nothing in the opinions we reviewed revealed any deep convictions or passions. That does not necessarily bode ill for his willingness to enforce the civil rights laws, but it is difficult to imagine Judge Breyer as the author of the next Brown v. Board of Education,” wrote Don Verrilli—who today, as U.S. solicitor general, is Mr. Gershengorn’s boss.