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Now begins a new flowering of New England jurisprudence. The nomination Friday of federal appeals Judge Stephen G. Breyer to the Supreme Court brings the prospect of the greatest concentration of New England intellectual power at the heights of American judicial life in more than a half-century, and it may offer echoes of the golden age of New England jurisprudence, the 16 years when Oliver Wendell Holmes and Louis D. Brandeis served on the court together. But the meeting of two prominent justices, Breyer of Massachusetts and David H. Souter of New Hampshire, on the high court would be more than simply an extraordinary symbol of the endurance of New England intellectual life. These two men -- one a Democrat, one a Republican -- could also define the new center of the court itself. In nominating Breyer, President Clinton indicated that his strategy is to move the court away from the right, not by selecting a lone wolf to stand on the court's lonely left flank but by solidifying the center, which many experts believe is personified by Souter. ''Everything about Breyer's background and personality seems to lead him to the center, and he and Souter may reinforce each other and strengthen the center,'' said A.E. Dick Howard, a University of Virginia Supreme Court specialist. Moreover, the two men -- Breyer, who moves easily in political circles, and Souter, with his more reserved and scholarly mien -- represent both the two sides of New England public life and the two currents of influence on the high court. It is of no little significance that the two fit David Hackett Fischer's description of Paul Revere in his extraordinary account of the most famous horse ride in American history: ''His mind and character were shaped by the established institutions of New England -- family, school . . . and the town itself.'' There is, as Van Wyck Brooks put it in his classic 1938 book on the New England mind, ''a great life-pattern of New England.'' It was expressed by an early president of Harvard who said of John Adams what could be said of the two New Englanders of the court: ''For 50 years he rose before the sun.'' Breyer, early riser and deep thinker, is a San Franciscan by birth but a New Englander by choice. ''I woke up one morning and discovered I was a New Englander,'' he said in a conversation yesterday. He is not the first: The quintessential voice of New England, Robert Frost, was born in San Francisco in 1874. Both Breyer and Souter are judges by profession, hikers by avocation. They have both seen the world as it looks from the top of New Hampshire's White Mountains. They are both shaped by their years in a region that accepts the world's foibles, and where the words ''competence'' and ''conscience'' seem to flow off the tongue together, and easily. They are the products of a region where the phrase ''searching and restless intellect'' -- Clinton's description of Breyer on Friday night -- bespeaks a great tradition, and even great social cachet. It was the essayist and poet Oliver Wendell Holmes, the justice's father, who said in 1860 that Boston, with its rude and crooked streets, kept open ''more turnpikes that lead straight to free thought and free speech and free deeds than any other city of live men or dead men.'' Much of the region's landscape and climate is stark, which is good for judgment. It has a history that has provided ample experience and literature about choices, whether in the novels of Nathaniel Hawthorne (and, later, of Stephen King) or the witch trials of Salem. It has a great heritage of contemplation, reaching its zenith with the transcendentalists of Middlesex County. As judges, the two men gained their experience in both a calling and a region that are steeped in tradition -- where, it is said, every tub has its own bottom and every case is decided on its own merit. The phrase is attributed to Samuel Livermore, chief justice of New Hampshire and a senator in the early years of American independence. The prevailing ethos, according to Jere Daniell, a Dartmouth College specialist in New England culture and history, is: ''Let wise men of judgment make decisions on a practical basis.'' The nature of justice has long been a subject of serious thought in the region. In a conversation with Justice Benjamin N. Cardozo, Frost, by then a zealous convert to the New England ethic, had this bit of counsel: ''You have to distinguish between being a referee and a handicapper.'' It is an apt synthesis of the judicial philosophy of both Breyer and Souter. Both are wary of government interference, a longstanding tradition in an area where, as Donald Cole, a retired Phillips Exeter historian and expert on New England, put it, ''people have strong character and independence.'' Breyer and Souter, who know each other, both are frugal eaters in the New England way. Souter contents himself with a bowl of yogurt for lunch, leaving a recent dining partner to wonder whether the apple on the table was for him or for the justice (it turned out that Souter, man of habit, has his apple later in the day, eating it completely, including the core); last weekend Breyer picked apart an airline meal, putting the bread aside and leaving the candy bar entirely. But there are important differences. Breyer is a prominent figure in Cambridge, a more bustling setting, to be sure, than Ware, N.H. And while Souter is a close friend of taciturn New Hampshire political figures such as former GOP Sen. Warren B. Rudman and former Attorney General Thomas D. Rath, Breyer's political associates are of a more voluble sort, such as Democratic Sen. Edward M. Kennedy, his patron, and former Boston Mayor Ray Flynn. ''Breyer has a facility for walking between the hallowed grounds of Harvard and the cold political and practical grounds of Boston,'' said Kenneth R. Feinberg of Brockton, now a Washington lawyer. That is a metaphor for the role that Clinton hopes Breyer will play on the court. Breyer has already received an extraordinary range of support, stretching all the way from Kennedy, whom he served as chief of staff of the Senate Judiciary Committee, to GOP Sen. Orrin Hatch of Utah, a devout conservative. Republican Sen. Strom Thurmond of South Carolina pronounced the nomination of Breyer ''an excellent choice.'' Breyer's appointment came after Harry A. Blackmun announced his retirement earlier this year. It meant the end of the reign of the ''Minnesota Twins,'' the term given to the service of Blackmun and former Chief Justice Warren Berger. Two Arizonans, William H. Rehnquist and Sandra Day O'Connor, currently sit on the court. It would not be the first time New Englanders have played vital roles on the court. William Cushing of Massachusetts and Oliver Ellsworth of Connecticut served together on the first court. Holmes also served with William Moody of Massachusetts for four years and with Harlan Fiske Stone, who was born in New Hampshire and coached football at Newburyport High but who achieved prominence as a Wall Street lawyer and, during his court years, was considered far more New York than New England. Breyer has already left his mark on New England as one of the principal forces in the construction of the new federal courthouse at Fan Pier. ''He thinks of himself,'' said Vivian Li, the executive director of the Boston Harbor Association, ''as being from here.'' |