Legacy Examined As Stevens Departs High Court

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On Monday, the last day of the Supreme Court term, retiring Justice John Paul Stevens bade farewell to his colleagues. Eduardo Penalver, a Stevens clerk during the 2000 to 2001 term, joins host Michel Martin to discuss Steven's legacy, Elena Kagan's ongoing confirmation hearings and the evolving make-up of the court — on the bench and behind the scenes, among the court's clerks.


I'm Michel Martin, and this is TELL ME MORE from NPR News.

In a few minutes, we're going to try to sort out just how this financial reform package it's winding its way to the president's desk affects us, the consumers.

First, though, behind the scenes at the U.S. Supreme Court. Yesterday was the opening day of the confirmation hearings for Supreme Court nominee Elena Kagan. As has become customary, she's striking a very deferential and cautious tone before the Senate Judiciary Committee. This snippet may offer a little bit of the flavor of the thing. Here it is.

Ms. ELENA KAGAN (Solicitor General, Supreme Court Nominee): The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one, properly deferential to the decisions of the American people and their elected representatives.

MARTIN: Monday was not only the first day of hearings for Elena Kagan's nomination, it was the last day of a 34-year run for Justice John Paul Stevens. And in a tribute to the justice, the courtroom was dotted with lawyers and journalists, men and women alike, wearing Stevens' signature bowtie.

Eduardo Penalver, a Stevens' clerk during the 2000 to 2001 term, joins us now to talk about Justice Stevens' legacy, the confirmation hearings. And we hope to tell us a little bit about the life of a court clerk. Mr. Penalver is also a professor of law at Cornell University, and he joins us from there now. Professor, thank you so much for joining us.

Professor EDUARDO PENALVER (Law, Cornell University; Former Supreme Court Clerk): Thanks for having me.

MARTIN: Now, of course we've been expecting this retirement for some time. But now that it's here, any feelings about that?

Prof. PENALVER: Well, it's always, you know, it's sad to see his final day on the bench. We knew it was coming. We have known it was coming, really, since last summer when he hired only one clerk for this coming year.

MARTIN: And when you are a clerk, you know, what's that like?

Prof. PENALVER: Well, being a clerk for him is the best clerkship in that building. I think everyone who has clerked for Stevens agrees that that's the case. And each chamber is like a little law firm in a way. You work for your justice and with your justice. And the experience is very much colored by the personality of the justice. And so historically some justices have not treated their clerks well.

And Stevens replaced Douglas on the bench. And Justice Douglas' clerks referred to him by a name that I can't say on the radio.

MARTIN: Really? Why? Because he was mean? Or...

Prof. PENALVER: He was just mean. Yeah, he was just an ornery guy.

Stevens is the opposite. Stevens was just he's gentle, humble, respectful, very generous with his clerks. And to work with him at the stage in his career that I did, you know, he had been on the Supreme Court about 20 years by the time I clerked, it was just incredible to watch him at work.

MARTIN: You said in a piece that you wrote for The Washington Post, an op-ed piece that you wrote earlier this year that he would gently probe for the view, the preliminary views of his clerks before he would disclose his own. And you said if there were disagreements, he would explore it until you found common ground or a reason, basis for your differences.

Now, that, I think that's interesting to people who are not a part of the process to suggest that the clerks have a role in the shaping of the opinions. You think that's a fair statement?

Prof. PENALVER: Yeah, definitely, fair. I mean, but it's not so much, you know, a role in determining the outcome, it's a role in just kind of as a sounding board for the justice's ideas. You know, we push back and he kind of modifies his thinking based on his assessment of our thinking. And I think the reason why he was always so gentle and careful to kind of illicit our opinions was that he knew where the authority was. He's the judge. He's the justice. He's the one who's been appointed by the president and confirmed by the Senate and he's the ultimate decision maker.

The joy he took in being around this group of kind of young, straight-out-of-law-school clerks, trying to glean ideas from them, was a part of the secret to his kind of eternal youth. You know, the guy is 90 years old. And when I clerked for him he was 80 and I had just had sat down with him last spring after he announced his retirement and, you know, he had not changed a bit. I mean, he was just ageless. It's unbelievable.

MARTIN: You write in your op-ed piece, you said that his opinion, highly intelligent, honest and non-doctrinaire, you said earned this appointee of Gerald Ford an early reputation as a maverick whose judgments did not conform to any ideology. Couple questions I wanted to ask. If it sort of, by definition, are people on the court now to conform to an ideology? And do you think that that's just the way it is or do you think that perhaps another John Paul Stevens could emerge?

Prof. PENALVER: I do think to a certain extent that time is passing. And I think there was a time earlier in the 20th century where the Supreme Court was not this sort of central political focus. And obviously during the New Deal, there were disputes about the court, during the civil rights era there was a lot of controversy focused on the court.

But I think this sort of sustained politicization of the court, really, since the 1980s is new. Justice Stevens was nominated by Ford, confirmed by a Senate that had 60 Democrats unanimously and has not been a, you know, he's called the sort of most liberal justice, but his demeanor is very non-ideological. He approaches each case as it comes. His opinions are narrowly crafted. That, I think, is less characteristic of the court, as it's become.

I do think there's a little bit of a difference between and the justices on the right, who I think are much more unified and kind of ideologically driven, and the justices on the left who remain in that, I think a more pragmatic mold.

MARTIN: One of the things I'm curious about is, number one, obviously people are very interested in Elena Kagan. And do you think that because she's been nominated to replace Justice Stevens, in what way will she replace him? And will she replace him, as you described, as kind of non-doctrinaire, or will she just replace him as a maverick, or what sense do you get from her?

Prof. PENALVER: She strikes me as a fairly non-doctrinaire person. She certainly doesn't move the court to the left by any measurable degree. I think she'll probably be in the mold of the most recent Democratic nominees, which is to say, you know, generally progressive but non-dogmatic, not, you know, very kind of pragmatic and a little strategic, you know.

So at the end of the Brennan and Blackman and Marshall years, you had, you know, sometimes those justices, especially Brennan and Marshall writing these dissents about the death penalty, right, in every death penalty case. Even though they, you know, it was just the two of them and they knew that the court wasn't going to shift its position on the death penalty. That kind of lonesome dissenting is not something that the justices on the left do now.

MARTIN: If Elena Kagan is confirmed, she will be the fourth woman to serve on the court. She will be the third to serve concurrently. And we're certainly seeing more gender and racial diversity on the bench. But one of the things I was curious about, behind the scenes, are the clerks as diverse as the justices?

Prof. PENALVER: Well, I would say historically they've been about as diverse as the justices, which is to say not very diverse. So until Sotomayor, there was always only one person of color on the court. For a long time it was Thurgood Marshall. And then, you know, since '93 it's been Clarence Thomas. Thomas has said that he doesn't want to hire liberal clerks. And so I think he's kind of limited the universe that he draws from to a group of people that's disproportionately white.

MARTIN: Well, finally, before we let you go, there's been so much talk about how these confirmation hearings are, well, in Elena Kagan's own words, kind of vapid and not terribly revealing anymore. And I wondered if you share that view that they really are kind of a sort of a ritualistic exercise that tells us very much, and if there is anything you wish to know about Elena Kagan that you hope might come out during the hearings that we could talk about.

Prof. PENALVER: I suppose in an ideal world it would be nice to see her views on a number of kind of legal questions come out during the confirmation process. But I really doubt that's what we're going to see. I mean, in recent there's been this tendency for the senators to kind of speak past the nominee to their respective audiences, their bases. And so the nominee just try to kind of keep his or her head down and say as little as possible so that nothing can be used against them.

And I think we're likely to see that here. In fact, I mean, the whole Kagan nomination in some way smacks of that strategy because she's someone who was I think attractive to Obama as a nominee because of the fact that she was not a federal judge for a long time, didn't have a lot of opinions in the record that could be kind of culled over for damaging, you know, facts or misstatements.

MARTIN: Eduardo Penalver served as a clerk for Justice Paul Stevens during the 2000, 2001 term. He was kind enough to join us from Cornell University where he teaches law, to talk about Justice Stevens' legacy and the ongoing confirmation hearings and a little bit about life on the court behind the scenes.

So, Professor Penalver, thank you so much for joining us.

Prof. PENALVER: Thank you, Michel.

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