SOUND JUDGMENTS

WASHINGTON - THEY TELL a helpful story on Capitol Hill about Stephen Breyer
from back when he was the super-sharp, young staff director for the Senate
Judiciary Committee in the 1970s.

It helps understanding how Supreme Court Justice Breyer pulled off an
astonishing feat of leadership over the last six months on the politics and
values-loaded issue of sentences for criminal violations of US law.

Congress was finishing up some bill and was at the stage where the Senate
and House versions of legislation are reconciled in conference committee.

Helping the group of senators, including his boss and then-Judiciary
chairman Edward Kennedy, Breyer listened intently to a presentation on a
point where the Senate differed from the House. He remarked that the House
guys had made a strong argument that deserved consideration.

That got him a sharp glance from the senators, who expect unwavering
support from their assistants. It also planted the seed, above all in
Kennedy's mind, that Breyer thought like a judge. These days, not enough
people do, including many who do judging for a living.

For nearly all of his career in public service, Breyer has been toiling on
the topic of how the country's laws should be applied to the people who
violate them. It is as vexing an issues as there is, mixing as it does
ideology, politics, values, and the meaning of constitutional principles.
It is also vexing because some of the purposes of law clash -- fairness and
toughness, concern for society's protection, and concern for the
individual, the politics of law and order, and the politics of justice.

Last summer, the court opened a huge can of worms by narrowly ruling that
Washington state judges could not add time to a convicted person's jail
sentence based on their own findings of fact. The reason, according to the
five-justice majority, was that the fact-finding -- about the person's
background or character or anything that affected his sentence other than
past convictions -- violated his right to have a jury decide facts
affecting his liberty.

That decision was contrary to a decision in 2000 involving a person in New
Jersey who had two years added to a 10-year term on a weapons crime because
the judge decided racial hatred was a motivating factor. The decision was
not that hate crimes can't be punished, but that depriving someone of
liberty requires factual jury decisions beyond a reasonable doubt.

The effect of the two rulings was not just to toss out most of two states'
sentencing guidelines. It also brought into question the procedures in all
states; and it brought into question the US government's sentencing system,
under which more than 1,000 convicts a week are sentenced.

Last week, the Supreme Court followed the logic of these decisions in one
case involving US criminal law but appeared to veer away from it in
another. In a 5-4 majority, it decided that the federal sentencing system's
guidelines do not have to be followed by trial judges. But in a different
5-4 majority, it decided that they could and should be used in sentencing
as long as they were just that, guidelines, and not mandates.

The only justice who swung both ways was Breyer's fellow Clinton appointee,
Ruth Bader Ginsberg. But the key influence was Breyer himself. While he
dissented from the first decision, he sought to apply it to the second,
writing that criminal law needs to "avoid excessive sentencing disparities
while maintaining flexibility sufficient to individualize sentences where
necessary."

A liberal person might contend that there's a difference, and ought to be
one at sentencing time, between a lower-level drug dealer who's a murderer
and one who's a drug addict with a disabled wife and a sick kid. A
conservative person might contend that all corporate price-fixers and
stock-manipulators are not alike. What the country needs is more judges who
don't simply reflect the poles of ideology but who work to bridge them when
possible.

Breyer has been working to do that for a quarter-century. The effort to
rewrite the US criminal code involved left and right, Carter and Reagan,
Kennedy and Joe Biden and Strom Thurmond and Orrin Hatch. Breyer was in the
thick of the congressional action on sentencing and the implementation of
it while on the bench in Boston.

Perhaps the pendulum swung too far toward uniformity, which many judges
hated; now it will swing back, risking some chaos and a congressional
overreaction. That's life, but that's also the essence of judging.