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Obama Vows to Move Quickly to Fill Court Vacancy

April 9, 2010 at 12:00 AM EST
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As Justice John Paul Stevens prepares for retirement, Judy Woodruff talks to Marcia Coyle of the National Law Journal and constitutional scholars Kathleen Sullivan and John McGinnis about the possible candidates to replace him and the Senate confirmation battle that will likely ensue.
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JIM LEHRER: The oldest member of the U.S. Supreme Court is stepping down after 35 years. Justice John Paul Stevens had been the leader of the court’s liberal wing.

Judy Woodruff has our story.

JUDY WOODRUFF: Justice Stevens informed President Obama of his resignation in a one-paragraph letter this morning.

It read: “My dear Mr. President, having concluded that it would be in the best interests of the court to have my successor appointed and confirmed well in advance of the commencement of the court’s next term, I shall retire from regular active service as an associate justice, effective the next day after the court rises for the summer recess this year.”

Hours later, in the White House Rose Garden, after returning from Europe, the president thanked Justice Stevens for his service.

U.S. PRESIDENT BARACK OBAMA: He has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint.

JUDY WOODRUFF: The retirement of the court’s longest-serving current justice came 11 days before he turns 90, but it was no surprise. He had hinted at it for months.

Stevens’ time on the court began after President Gerald Ford nominated him in 1975. Over the years, he became a reliably liberal voice. He voted to limit the use of the death penalty and to broaden the scope of abortion rights.

In 2000, he led the dissenters in Bush vs. Gore, the 5-4 decision that sealed George W. Bush’s election as president. And later, Stevens won support from Justices Anthony Kennedy and the now-retired Sandra Day O’Connor, the court’s swing voters, to rein in key Bush administration policies.

In 2006, he wrote the majority opinion in Hamdan vs. Rumsfeld, holding that using military commissions to try terror suspects at Guantanamo Bay was unconstitutional.

Stevens was asked in 2007 what his legacy might be.

JOHN PAUL STEVENS, Supreme Court justice: I suppose, on the basis — the basis of the opinions I have written is that there’s an awful lot of them. They have to pick and choose between them. But — but you leave — you know, you leave your record on what you have had to say over the years.

JUDY WOODRUFF: Today’s resignation now gives President Obama his second high court nomination. The chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, appealed today for civility in the coming confirmation fight. He said — quote — “I hope both sides of the aisle will make this process a thoughtful and civil discourse.”

Senate Republican Leader Mitch McConnell said, “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint.” Confirmation hearings are expected to begin in midsummer.

And we get three views now on the retiring justice from John McGinnis, a professor of constitutional law at Northwestern University School of Law. He served in the Office of Legal Counsel in the Justice Department during the first Bush administration. Kathleen Sullivan teaches constitutional law at Stanford Law School. She has argued numerous cases before the Supreme Court — and “NewsHour” regular Marcia Coyle of “The National Law Journal.”

Thank you, all three, for being here.

I’m going to start with you, Kathleen Sullivan.

What does it mean for the court to lose John Paul Stevens?

KATHLEEN SULLIVAN, constitutional law professor, Stanford Law School: Well, Judy, this is the end of one of the great tenures on the court.

Justice Stevens served 35 years through seven presidents and three chief justices. And he’s become really the liberal leader of the court, a statesman who perhaps moved left as the court moved right. But, because he has been for 15 years the senior most justice on the liberal side of the court, he’s been able to sometimes eke out 5-4 liberal victories on a conservative court, for instance, as you mentioned, in Hamdan vs. Rumsfeld, saying to the Bush administration, no, you cannot make up new military commission procedures that violate the Geneva Conventions to try the Guantanamo detainees.

Or, in another case, he led the court to a 5-4 ruling that said that the Bush administration had to, against its will, look at greenhouse gases that may be causing climate change. So, he was able, through the force of his gentle, courtly, civil, expertly professional demeanor on the court to sometimes round up 5-4 liberal victories through his seniority.

So, we may see a new vote that comes on to replace a liberal vote on the court, but the junior most justice won’t have the senior leadership power that Justice Stevens will leave behind.

JUDY WOODRUFF: John McGinnis, explain to us the evolution of a Republican — appointee of a Republican president, Gerald Ford, who did become the liberal standard-bearer on the court, still calling himself a Republican.

JOHN MCGINNIS, constitutional law professor, Northwestern University School of Law: Two things happened.

One, I think it is fair to say that the Republican Party of Justice Stevens’ day has changed. I think it’s become more interested in social issues than the Republican Party of Justice Stevens’ day. But it’s also true that he moved considerably to the left on issues during his time on the court.

And I would mention two of those. One of those is the death penalty, which he said was unconstitutional at the end of his tenure, having voted to uphold it at the beginning, and then, perhaps even more dramatically, having compared racial preference laws, affirmative action, to the Nuremberg laws of Nazi Germany at the beginning of his tenure, and then becoming a voice, a strong vote to uphold them.

And, there, I think we see the general problem for Republicans in changing the court, that because the opinion-makers in law, both in academics, and, to some extent in the media, I think we can empirically show very much lean to the left.

Only justices who have been tested in Washington, like Justice Alito or Justice Roberts, tend to stay faithful to the vision of the presidents that have appointed them. So, I think there is a story there as well.

JUDY WOODRUFF: Marcia Coyle, you observed him almost — well, regularly almost every day. Every day the court was in session, you saw him. Talk about his influence on the court.

MARCIA COYLE, The National Law Journal: Well, I think, first, as a person, if you only knew him from watching him on the bench, you would see somebody who is unfailingly polite, even to the point of apologizing when he interrupts a lawyer’s statement to ask him a question, someone who asks very direct questions, no agenda, incredibly smart hypotheticals that can find a lawyer’s weakness in his argument very quickly, and very modest person.

I remember, for example, Chief Justice Rehnquist once coming down very hard on a lawyer who kept referring to the justices as judges. And when Justice Stevens finally had a chance to ask a question, he prefaced it by saying he believed the Constitution referred to them as judges.

MARCIA COYLE: That’s on the bench.

But he also is a voice inside the court, and in a way that will be missed. He’s the only justice who has his clerks go through, on a regular basis, the petitions that the court will decide whether to take or decline, whereas the other justices rely on a pool memo from clerks. That’s an important check.

And he’s also the only justice who continually dissents when the court brings the bar down, the ban down on what I call frequent filers at the court because they’re frivolous filers. He feels the court has an obligation and it’s not a big burden to go through these petitions.

JUDY WOODRUFF: Kathleen Sullivan, picking up on what Marcia has just said — and I think you used the term gentle persuader — fill that out a little bit more for us. How did that work with Justice Stevens?

KATHLEEN SULLIVAN: Well, Justice Stevens had a particularly close relationship with Justice Kennedy, who is so often the swing vote on the court.

And, for example, in the environmental case, he was able to get Justice Kennedy, a strong supporter of states’ rights, to say that Massachusetts had a right to compel the federal government to regulate greenhouse gases. So, I think he had a way of figuring out what each justice cared about and bringing them to his team.

But I think, in terms of his legacy, we should remember he made a great contribution to freedom of speech, often siding with the freedom of speech, whether it was of Jehovah’s Witnesses to proselytize door-to-door or of people to use the Internet.

He may have been the oldest justice, but was the first to say that the Internet has, in effect, made everyone with a personal computer effectively a town crier who could communicate to all the world.

He wasn’t always for freedom of speech rights. He didn’t believe that flag burners had a right to burn the flag in protest. And that reflected the fact that he was the only person on the court with military experience. He served in the Navy in World War II. And he didn’t think flag burning was a form of protected speech.

And he didn’t think corporations should have speech rights in contributions to — in issue ads in political campaigns. He went out with a very pointed dissent from the Citizens United case.

But I think, Judy, one last point is, he really believed in the rule of law, and that was another way he was able to unite justices. In his decisions that Justice Kennedy and Justice O’Connor joined, saying that the Bush administration couldn’t improvise new detention procedures or new commission procedures, he was really appealing, again, to his military service, to the notion that rule of law is important.

I once was at a conference with him, and I — he said that the most important thing judges in other countries say about our court is, our court gets its decrees obeyed. We follow the rule of law. And that was the principle that enabled him to be the gentle persuader.

JUDY WOODRUFF: And, in fact, he is the last veteran to serve on the court.

John McGinnis, what will he be most remembered for?

JOHN MCGINNIS: I think, if you talked — looked at it doctrinally, I think his opinions on executive power. He had an abiding suspicion of presidential power. And I think this was true of any president.

We have already mentioned the Hamdan case, in which he said the president could not set up military commissions unilaterally. But I would mention two other very important cases, one, Clinton vs. Jones. He was the author of the case which said that President Clinton could not delay the lawsuit of Paula Jones. And, of course, that almost brought down President Clinton’s presidency.

He also struck down the line-item veto. Congress decided to give the president a line-item veto because of problems which we’re coming to again of fiscal indiscipline in Congress. And I think Justice Stevens thought that went too far that that could be given for the president.

So, that would be, I think, his greatest legacy on — on the court, and most long-lasting, to be the suspicion of presidential power. And I think that may have gone back to his Republican roots, to his suspicion of people like Franklin Delano Roosevelt

JUDY WOODRUFF: Marcia, what would you add to what his legacy will be?

MARCIA COYLE: Well, I think I would add as well his rulings in the death — area of the death penalty. He did strike down the death penal for juveniles and the mentally retarded. And, as was pointed out, he completed his evolution from supporting the death penalty to the most recent case involving lethal injection, his decision — his conclusion that it ultimately was not worth the cost.

There’s one other major power he had, or influence that he had on the court. As the senior justice, when the chief was in the minority, Justice Stevens had the power — and Justice Stevens was in the majority — he could assign opinions. And that was also how he was able to get some influence. By picking certain justices like Justice Kennedy, he kept them on his side in — in those opinions.

JUDY WOODRUFF: Is that — and that’s a skill that developed over time?

MARCIA COYLE: Oh, definitely.

I mean, he was able to pick out what interested other justices. We saw it in the sentencing revolution that he launched in 2001. He realized that Justice Scalia, not a normal ally, really cared about the role of jury — juries in criminal trials. And he used that to engender more fairness in sentencing, criminal sentencing.

JUDY WOODRUFF: Just a few seconds from all three of you, if you would, in what do you expect President Obama to look for in a replacement. And how will that shape the court to be different from what it is now? That’s a lot to ask, but just in a few seconds.

Kathleen Sullivan?

KATHLEEN SULLIVAN: Brilliance, youth and confirmability. The administration has a number of excellent candidates to choose from. And whatever happens in the political drama, that nominee will go through.

JUDY WOODRUFF: John McGinnis?

JOHN MCGINNIS: I think confirmability will be very high. The president has lost independents, and he has a lot else on his agenda. So, I think it is very unlikely that he will want something that causes a firestorm through his nomination in the court.

JUDY WOODRUFF: And, Marcia?

MARCIA COYLE: Well, I would second all of those.

I think it is important to remember that, even though he will be replacing someone on — among the four on the left, that every justice does have an impact in some way on the rest of the court. And you may not get another John Paul Stevens, but you may not realize you have another John Paul Stevens after you have that person for a number of years.

JUDY WOODRUFF: Marcia Coyle, John McGinnis, Kathleen Sullivan, thank you, all three.

JOHN MCGINNIS: Thank you.