Justice Stevens' Departure Will Change Court
NEAL CONAN, host:
This is TALK OF THE NATION. Im Neal Conan in Washington.
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But first, after more than three decades on the Supreme Court and months of speculation about his future plans, Justice John Paul Stevens confirmed over the weekend that he will surely retire during President Obama's term and will decide soon if that will happen this year or next.
President Gerald Ford named Stevens to the court in 1975. At 89, he is the high court's second-oldest justice in history. Known as the leader of the court's liberal bloc, his departure will provide the president the second opportunity to appoint a Supreme Court justice and would surely mean another confirmation battle in the United States Senate.
Joining us here in Studio 3A is NPR legal affairs correspondent, Nina Totenberg. Nina, always lovely to have you on the program.
NINA TOTENBERG: Thank you.
CONAN: And I understand you had a chance to talk with Justice Stevens a little while ago.
TOTENBERG: I sat down with him for about an hour about a month ago. It was sort of an off-the-record chat, so I didn't write about it, but he made it very clear that he's thinking about retiring. And I thought he was still somewhat conflicted about it.
He's always said that he had a colleague on the court, you know, that would tell him if it was time for him to go. So I reminded him of that, and I asked him if his colleague was still there, and he said no. It was David Souter, and he left. And I called him up and said he'd betrayed me.
(Soundbite of laughter)
TOTENBERG: He was my check. And so he wasn't there. But, you know, this is a man who is about to turn 90 later this month, who plays singles tennis three times a week, pretty vicious contract bridge I believe, is when I was in his chambers, when I walked in, he was in his shirt sleeves with his bow tie. He was at the computer working away. He's a most lovely, unassuming man, but if anybody has come to be a pivotal person on the court in terms of framing debate, it's John Paul Stevens.
Now, he loses more often than he wins in the close cases these days. He's the head of the so-called liberal wing, although he doesn't think he's changed very much since he was so-called centrist conservative, when he was named by President Ford. And I would have to say he's changed on a few things but not dramatically. The court's changed.
CONAN: The court's changed, and indeed, well, we'll talk more about that in a minute, but do you think it will happen this year? We're in the middle of the midterm elections. Or will he hold on for another year and put it off until, well, there would be another confirmation battle presumably in the late summer?
TOTENBERG: Well, he knows that if there's any chance for confirming someone in time to be sitting on the court when it reconvenes, that he has to do it sooner rather than later. He's been given the schedule by members of the Senate Judiciary Committee. He knows when he has to do this, and I would think it's sometime in the next month or so if he's going to do it now.
He also is not an idiot. He knows that the Democrats won't have 59 votes come after the election.
CONAN: A year from now, yeah.
TOTENBERG: On the other hand, you know, when I said to him, when you leave the court, or if you leave the court, what would you do? And he said ah, that's the problem. You know, this is a man still in the prime of his intellectual life. He's had one really bad day at the court in public, which you and I can discuss in a little while, but other than that, I wouldn't put my brain or anybody else's brain that I know up against that of John Paul Stevens.
CONAN: And he said surely will leave within President Obama's term, because that's the timing or because he wants to be sure that his replacement will be appointed by a Democrat?
TOTENBERG: I don't think it's so much of a Democrat because oddly enough, he always considered himself a Republican.
CONAN: Appointed by a Republican.
TOTENBERG: Appointed by a Republican, although pretty apolitical Republican. I think that he believes that Obama, who himself taught constitutional law and whose values he generally probably shares, will do a good job of replacing him and so that he trusts that.
But to say that you're going to leave by the time, you know, under President Obama, all that says is you're going to leave in the next basically two years. That doesn't you know, by then, he'll be 92. That doesn't tell you very much. What's he going to do, say I'm going to leave, you know, in 2018?
(Soundbite of laughter)
CONAN: His health is good, you said, but that one bad day?
TOTENBERG: The bad day, and I had never seen anything like it before from him, and neither had anybody else, was when he announced from the bench his dissent in the case in which the court reversed 100 years of campaign finance law and for the first time said that you couldn't put limits on you couldn't ban corporate, and by implication unions, spending on candidate elections, which had been the law since the early 20th century.
And he took the unusual step of reading a summary of his dissent from the bench. It's, I think, a 90-page dissent. He read for about 20 minutes, and he got completely garbled up in pronunciation. It was as if he couldn't see, as if he had the wrong glasses on, and he couldn't he misspoke a lot of words.
And so when I met him, met with him, I said to him, so what happened that day? And he said: How bad did you think it was? I said: I thought it was pretty bad, actually, not good. And he said it was the worst day that he'd had on the bench, and he felt just awful that he'd blown it, and although his, you know, law clerks said you did fine.
So I said: So, what happened? He said: Well, I went to the doctor afterwards and had all these tests run to make sure there wasn't something wrong, and there was nothing wrong. And he said, but I had been up very late the night before, working on this. Then I played early singles. I got stuck in a traffic jam. I got here. Then I had to take a shower before I got to the bench and sort of came huffing and puffing up, probably just putting on his robe at the last minute.
And I looked at this almost-90-year-old man, and I said, you know, Justice Stevens, you could've planned better, basically.
(Soundbite of laughter)
TOTENBERG: And I guess that's what happened is that he was just sort of a wreck from hurrying.
CONAN: Was this before or after the State of the Union speech? I wonder if he had any comment about the experience of sitting there in the House of Representatives as President Obama criticized that decision on which he was a dissenter.
TOTENBERG: Well, he wasn't there. He hasn't gone for he said he decided long ago that this was basically a political event at which he had nothing to contribute, and he just didn't he hasn't gone for years.
CONAN: So, all right. We have to speculate there is already a number of people suggesting that, well, obviously, President Obama's been through this experience just a year ago to pick Sonia Sotomayor that he may have a short list already.
TOTENBERG: Oh, I'm assuming he does and that it's mainly the list from last time. That's usually what happens, and you will see a lot of stories, including probably from me, about the coming battle.
We in the press always whip this up. It doesn't have to happen that way, although I suspect that Republicans will use whoever he Obama if Obama nominates somebody this spring or summer, that that'll become a rallying cry to raise money on the right.
But if it's somebody that's not sort of an in-your-face red flag, I think it's going to be very hard to prevent that nominee from being confirmed. I mean, the only nominee who's really been filibustered in modern times was Abe Fortas, and the Democrats helped filibuster the nomination. Republicans started it, but the Democrats helped.
And then some Democrats tried to start a filibuster of Sam Alito when he was nominated by President Bush, the second, and although and they got nowhere. They got a paltry number of votes, about half the number that they got against him, subsequently.
If you know, the party out of power doesn't that - to have a filibuster of a Supreme Court nominee, that basically would be almost unprecedented, would end up feeding the notion that that party was an obstructionist party.
CONAN: Your former intern, Tom Goldstein, who does the SCOTUS blog, suggests that the prohibitive favorite is Elena Kagan, the solicitor general.
TOTENBERG: I think she is one of the favorites, and I know Tom is beating the drums. He's got, I think, a page devoted to her, and she certainly was at the top of the list along with Sotomayor last time, as were some others, including Janet Napolitano and Merrick Garland, a judge on the D.C. Court of Appeals, and Diane Wood, from the court of appeals in Seventh Circuit Court of Appeals in Chicago.
And I'm assuming that all of those are still finalists, and but I'm not as prepared to say that one person is a prohibitive favorite. If you want another woman, you know, Kagan or Wood, but there you know, or Napolitano, but Napolitano has had so many important jobs in her life that she is, as one White House official said to me, the vet from hell.
(Soundbite of laughter)
CONAN: There is also some people on the left who are already speculating that after the possibility of naming two justices to the Supreme Court, the court could be more conservative after two Obama appointments than it was when he found it.
TOTENBERG: It's possible, also possibly not. John Paul Stevens is, you know, having been there three decades, is a force on that court, and he knows how to make coalitions when it's possible, and he can see openings to what they, the various justices can agree on when there are those openings. You can't make a majority if you don't have a majority.
And that is something that the new person will not have. That is not a skill any new justice has. It usually takes a justice between three and five years to get completely acclimated to doing the work of the court. So it's going to be different.
CONAN: We just have a minute or so left with you. His legacy will not change, whether he retires at the end of this month or the end of the next court term. What is he going to be remembered for?
TOTENBERG: I guess I think that he'll be remembered for keeping in check the various branches of government, and in fact, to some extent, in particular, the executive branch. After all, he wrote the decision that allowed President Clinton to be sued. He was the author of that opinion, saying just because you're president doesn't make you different. And he was the author of a good deal of the opinions in the Guantanamo cases that said, to President Bush: You can't just do this by yourself. There are rules, and you've exceeded them.
CONAN: NPR legal affairs correspondent Nina Totenberg, with us here in Studio 3A, talking about the, well, depending on how imminent it is or not, departure of Justice John Paul Stevens. Thanks very much for being with us today.
TOTENBERG: Thank you, Neal.
CONAN: Up next: Haiti, Chile, Turkey and the latest in a string of large earthquakes, yesterday at this time in Mexicali in Baja Peninsula. We'll talk with NPR science correspondent Richard Harris about, well, whether any of all this is connected. Stay with us. It's the TALK OF THE NATION from NPR News.
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