MICHELE NORRIS, Host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
MELISSA BLOCK, Host:
But first, NPR legal affairs correspondent Nina Totenberg has this look back.
NINA TOTENBERG: In 1975, President Ford appointed him to the U.S. Supreme Court. The nomination drew instant praise from Democrats and Republicans alike, and Stevens was confirmed in a remarkable three weeks. Given Stevens' lack of political ties, his rise was, to some extent, a fluke, according to his one-time law clerk Clifford Sloan.
NORRIS: It was an accident of history. And the stars lined up in a way that could not have been possible before that precise moment, and probably could not have been possible after that precise moment.
TOTENBERG: Once on the court, Stevens quickly earned a reputation for quality work and for independence. Unlike other justices, he even declined to attend State of the Union addresses. In his first decade, he was seen as a center-right justice. But as the composition of the court grew more and more conservative, he found himself referred to as the court's most liberal member - a moniker he never liked, according to fellow Chicagoan Abner Mikva, who served 15 years as a federal judge himself.
NORRIS: It bothers him a great deal whenever he hears himself portrayed as a liberal. And we're together, he looks at me plaintively and he says: Now, Ab, you know I'm not a liberal. And I do.
TOTENBERG: Over the years, Stevens authored some 400 majority opinions for the court on almost every issue imaginable, from property rights to immigration, from abortion to obscenity, from school prayer to campaign finance reform, from term limits to the relationship between the federal and state governments. As former Solicitor General Ted Olson put it...
NORRIS: The crafty and genial hand of Justice Stevens was everywhere evident.
TOTENBERG: Mr. Bush was not the first president to feel Stevens' sting. Stevens also wrote the opinion for a unanimous court in Clinton v. Jones, the decision refusing to postpone Paula Jones' sexual harassment lawsuit against President Clinton. In summarizing the decision from the bench in 1997, Stevens dismissed the notion that the suit would burden the presidency.
J: In the entire history of the republic, only three sitting presidents have been subjected to suits for their private actions. As for the case at hand, there's nothing in the record to identify any potential harm that might ensue from scheduling the trial promptly.
TOTENBERG: In 1997, he took the unusual step of announcing his dissent from the bench when the court struck down a key section of the Brady gun control law that imposed a short waiting period on gun buyers to allow local law-enforcement officials to run a criminal records check.
J: The basic question is whether Congress, acting on behalf of the people of the entire nation, has the power to require local law-enforcement officers to perform certain duties. Since the ultimate issue is one of power, we have to consider its implications in times of national emergency, matters such as the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist.
TOTENBERG: Stevens' ultimate revenge came eight years later, when he managed to eke out a 5-4 majority upholding a federal regulatory scheme under which the federal law making marijuana illegal trumped state laws legalizing it for medical purposes.
J: Our case law firmly establishes that Congress has the power to regulate purely local activities, when necessary to implement a comprehensive, national regulatory program.
TOTENBERG: Stevens' frequent dissents, as well as the separate opinions he often filed to note that his views differed from fellow justices, earned him a reputation as a maverick. But as he's explained, his insistence on stating his views stemmed directly from his experience as, in effect, a special prosecutor when he was appointed to investigate charges of misconduct against two sitting Illinois Supreme Court justices many years ago.
W: In that way and so many others, Justice Stevens, for decades, marched to the beat of his own drummer. The question now is what beat his replacement will march to. Whoever the president chooses, it's doubtful that he or she will wield the kind of influence that Stevens did - at least, not for some time.
D: Putting together such victories became increasingly difficult after the retirement of Justice O'Connor, when the court moved dramatically to the right. But Stevens continued to score the occasional, unexpected win using his knowledge of the law, his powers of persuasion and logic, and the wisdom of a man nearing 90.
NORRIS: Nina, Justice Stevens' retirement presents an opportunity for President Obama to make a second appointment to the court. Among those mentioned as a leading contender is solicitor general Elena Kagan. Can you tell us a little bit more about her?
TOTENBERG: But there were 31 Republican votes against her confirmation as solicitor general because as dean, she had barred military recruiters from the campus because of the military's Don't Ask, Don't Tell policy. And that position that she took eventually was repudiated by the Supreme Court, which said, you will lose your federal funding over this, and that's perfectly constitutional. Unanimously, the court said that.
NORRIS: Next on the list?
TOTENBERG: And then there's Janet Napolitano, the Homeland Security director who has been governor, attorney general, United States attorney, and therefore represents what one White House aide said to me is the vet from hell, because she's had so many decisions that she's made in the course of her public career.
NORRIS: There are other names that are bandied about, but I want to move ahead and look forward to the possibility of fireworks during the hearings. The president said today that he hopes to have a justice on the bench in time for the court's fall term. How realistic is that, and how realistic is the possibility of a filibuster?
TOTENBERG: That, of course, bars something unexpected, like some information coming out that could cause real grief or a Republican filibuster, which I still think is pretty difficult.
NORRIS: Thank you, Nina. That's NPR legal affairs correspondent Nina Totenberg.
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