Biographer Takes Readers Inside Life Of Justice Stephens
MICHEL MARTIN, host:
I'm Michel Martin and this is TELL ME MORE from NPR News. My thanks to Audie Cornish for sitting in last week.
Coming up, we'll talk about the final four, not hoops, that's yesterday's news. Today we'll tell you about the final four of collegiate chess. That's in just a few minutes.
But, first, less than two weeks before his 90th birthday, Supreme Court Justice John Paul Stevens announced his retirement Friday. Justice Stevens is, of course, the oldest member and is considered the leader of the liberal wing of the Supreme Court.
It's expected that President Obama will nominate another progressive to replace Justice Stevens, but who? And what kind of person will be able to satisfy both the president's progressive base and conservative lawmakers eager to flex their muscle in an election year?
Joining us now to talk about this is Bill Burnhart. He's the author of the impeccably timed biography, "John Paul Stevens: An Independent Life." Also with us is Vikram Amar, associate dean for academic affairs and professor of law at the University of California Davis, who also served as law clerk to Supreme Court Justice Harry Blackmun. And I welcome you both. Thank you so much for joining us.
Mr. BILL BURNHART (Author, "John Paul Stevens: An Independent Life"): Thank you for having me.
Professor VIKRAM AMAR (Law, University of California Davis): Thank you.
MARTIN: Bill Burnhart, if we could start with you. Would you just tell us a little bit about Justice Stevens' path to the court?
Mr. BURNHART: Yes, Justice Stevens was a very successful corporate lawyer in Chicago. And in 1970 he was picked to join the federal appeals court here. It was a choice by President Nixon. Although, I don't believe President Nixon ever met Judge Stevens before he made the appointment. It was made at the request of Senator Charles Percy, who was interested in upgrading the level of competence on the federal courts in Illinois. And then from there he served well and when it came time for President Ford to replace William O. Douglas on the court, he chose Judge Stevens, although he had not met Judge Stevens until just a few days before the appointment.
MARTIN: Did he see himself did Justice Stevens see himself as a progressive?
Mr. BURNHART: Well, I'd have to ask you to define that term. But I think my answer is going to be no, certainly not when he went on the court. When he went on the court, he continued his pattern that had developed at the Seventh Circuit Court of Appeals in Chicago of judicial restraint.
He wanted the courts to be used only as a last resort. He believed very strongly as the expertise of other stakeholders in society, he didn't think courts should impose themselves unless it was absolutely necessary to resolve an issue at law. So, in that sense, I wouldn't call him a progressive. Later in his career, however, I think he did become a pragmatist. And I define that as someone who looks to the law to engage in society and move it forward. So, in that sense, he might be progressive today, but he certainly wasn't when he went on the court.
MARTIN: Perhaps the issue, though, is the terminology because liberal has become a discredited term in a way that conservative has not.
Mr. BURNHART: That's true.
MARTIN: Which just might be apart from Justice Stevens. Professor Amar, would you pick up the thread there and describe how Justice Stevens has functioned on the court. And if you would, also reflect on the question of how he sees himself. Does he see himself as a liberal?
Prof. AMAR: Well, I think he and my old boss, Justice Blackmun, both used to like to say that they didn't change, but the court moved to the right underneath them. And I think there's some truth to that. The court has gotten progressively more conservative over the last 40 to 50 years. And, indeed, almost every justice, if not every justice whos replaced an earlier justice over that 50 year time, has been more conservative than the justice he or she has replaced. And that's probably likely to continue even with Justice Stevens' replacement.
But Justice Stevens himself did modify his views on a lot of issues. When he got to the court, for example, he was very skeptical of race-based affirmative action in the Bakke case from here in the University of California Davis med school. He was very supportive of states' ability to impose the death penalty. He was skeptical of some free speech claims involving sexual speech.
So, he did kind of drift to the left during his time on the court. He also, I would say, went from being kind of an independent, almost kind of quirky member of the court to being the leader of the liberal wing, as you said earlier.
When I worked for Justice Blackmun in 1990, Justice Stevens would often write opinions for himself only and take a position that no other justice seemed to kind of understand fully. But after Justice Blackmun retired in the mid-90s, that's, I think, when Justice Stevens found his voice to write some more prominent majority opinions when he was able to get either Justice O'Connor or Justice Kennedy to join with the more liberal members of the court.
Or as in the last few years, he wrote kind of stinging dissent to conservative decisions in, for example, the gun control case out of Washington, D.C., in Heller, in the District of Columbia, or just this term in the Citizens United case involving corporate political speech. Justice Stevens wrote the powerful dissent in both of those rulings.
MARTIN: If you're just tuning in, you're listening to TELL ME MORE from NPR News. We're talking about the impending retirement of Justice John Paul Stevens from the United States Supreme Court and who might replace him. Our guests are Bill Burnhart, the author of "John Paul Stevens: An Independent Life," and Vikram Amar, associate dean for academic affairs, professor of law at the University of California Davis and a former Supreme Court clerk for Justice Harry Blackmun.
Is it unusual, Professor Amar, for a justice to what's the word I'm looking for it's not unusual to see a justice develop a leadership role over the course of time, to initially start just writing for himself and then to sort of become seen as a leader of a group or of a consensus. But you have a kind of ideological shift over time as Justice Stevens is believed to have done. Is that unusual?
Prof. AMAR: It's not unusual, I think. I think the same thing happened with Justice Blackmun, and even to some extent, Justice Brennan. A lot of conservative analysts think that there is a tendency or a bias on the part of justices ultimately to drift to the left once they get to the court because a lot of the other leading thinkers in American legal society, the academics and the media put kind of implicit pressure on justices to move to the left. And they kind of reward justices who make those leftward movements.
I'm not sure that that's entirely accurate. But history shows that there are a lot of justices who do tend to become more liberal as they go. I think the same was true for Justice Souter, as well. The conservative justices, the Scalias, the Thomases, the Alitos of the world, they don't necessarily get more conservative, they just kind of stay the way they were when they got on the bench.
MARTIN: Bill Burnhart, would you just tell us a little bit about Justice Stevens as a person - as a personality? We've recently seen justices become a little bit more what's the word I'm looking for public or outspoken in some fairly narrow ways. But I don't know that we - many of us just in the regular public get a sense of Justice Stevens as a person, except through his writing. So, could you just tell us a little bit about him?
Mr. BURNHART: Well, your observation is absolutely correct. Justice Stevens has always remained in the background by choice. He really believes in the independence of the judiciary. He does not wish to be out in headlines. He rarely gives any public talks other than to groups of lawyers and judges and scholars and so on. This, in part, comes from his background. His family was very high-profile in Chicago in the 1920s and 1930s. They built the Stevens Hotel, which was at the time considered the largest hotel in the world on South Michigan Avenue. It's now the Chicago Hilton. And they were everywhere because a hotel operator needs to be everywhere.
But they fell on hard times in The Depression. His father was indicted for embezzlement, having to do with his efforts to save the hotel. They got some very scandalous headlines in the Chicago newspapers when Justice Stevens was a teenager. Now, some people argue that that didn't affect his demeanor or his temperament, but I think that it did. I think it made him very worried about publicity. He's somewhat like Whizzer White, the former football star who became a justice and really disliked the press, disliked biographers and so on.
MARTIN: Oh, dear.
Mr. BARNHART: So, yes, Justice Stevens is in that mode. And I think he regards it as important to his work to be in the background.
MARTIN: Hmm. And I hope we have a minute at the end just to find out how he liked you, but before we do that, Professor Amar, tell us a little bit about some of the people who are the great mentioned as successors to Justice Stevens. And obviously it's very early in the process. But there was such a super-heated debate over Justice Sonia Sotomayor's nomination and eventual confirmation. And that was this very intense, emotional experience. Is there likely to be the same thing this time around?
Prof. AMAR: I think probably so. And I think the president will start by going back to some of the people that he considered when he elevated Judge Sotomayor. So, I think on everybody's shortlist are people like Elena Kagan, the former dean of the Harvard Law School, who's currently the solicitor general of the United States. The solicitor general represents the United States in front of the Supreme Court.
There's a judge from Chicago in the Seventh Circuit where Justice Stevens used to serve named Diane Wood, who's very well regarded and is also on the shortlist. And a judge in the District of Columbia circuit, Merrick Garland. I think those names come up repeatedly, as does Janet Napolitano, who was the attorney general and governor and a U.S. attorney in Arizona and now the head of Homeland Security.
I think the president will probably look at this pick and the process this summer as the beginning of the fall election cycle. So, one thing he might want to do is pick someone who is easily confirmable and who has the prospect at least of picking up some Republican votes, especially coming off of the straight party-line vote in health care.
Even Justice Sotomayor, who was contentious, picked up nine Republican votes. And if you go back four years or five years, Chief Justice Roberts got half of the Democrats to vote for him in the Senate. Now, maybe the world has changed and after health care, no Republicans are going to vote for any nominee that the president picks and he might as well go for someone he really likes and someone he thinks is going to do a good job over the next generation.
MARTIN: I see. Well, finally, thank you for that. And we'll be checking in again, of course, as the process goes forward. Finally, Bill Barnhart, we only have about a minute left, can you tell us whether Justice Stevens liked your book? And do you have any sense of who he likes as his successor? Do justices weigh in on such matters, even privately?
Mr. BARNHART: Well, to answer your first question, I'm not sure that Justice Stevens has seen the book. It's not being published officially until May, although it's been out and about and I think the people at Northern Illinois University Press would be glad to send him a copy.
I don't want to give the impression that he disliked me and my research associate Gene Schlickman. Not at all. He's a very gracious man. It's just that he's a very practical man, and he didn't really see any advantage to his work in the court and sitting with us for lengthy interviews and so on. What was your second question? Im sorry.
MARTIN: And I'm afraid we don't have time for it, so we'll have to go back to you and ask it again. I was going to ask if he had a sense of who he would choose to succeed him.
Mr. BARNHART: No.
(Soundbite of laughter)
MARTIN: No, the answer. Well, thank you for that. Bill Barnhart is the author of "John Paul Stevens: An Independent Life." He joined us from Chicago. And Vikram Amar is associate dean for academic affairs and professor of law at the University of California Davis. He served as law clerk to U.S. Supreme Court Justice Harry Blackmun, and he joined from the campus at U.C. Davis. Gentlemen, I thank you both.
Prof. AMAR: Thank you, Michel.
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