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2010-04-13

Group: Justice Stevens a "Champion of the Constitution in the Face of the Court’s Increasingly Conservative Jurisprudential Trend"

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President Obama is vowing a speedy appointment to replace the retiring Supreme Court Justice John Paul Stevens. Stevens has long been regarded as the leader of the “liberal” wing of the Supreme Court. The Alliance for Justice said in a statement, "He has emerged in the past decade as one of the Court’s most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice." We speak with the president of the Alliance for Justice, Nan Aron. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: On Capitol Hill, speculation is growing over who President Obama will nominate to replace the retiring Supreme Court Justice John Paul Stevens. The eighty-nine-year-old Stevens announced Friday he’ll step down at the end of the Court’s regular session in June. In the three days since the announcement, media speculation has centered on a short list of three top contenders to replace him: Solicitor General Elena Kagan, US Appeals Court Judge Merrick Garland and US Appeals Court Judge Diane Wood.

But the White House is pushing back against the notion that the President has narrowed his search to just three frontrunners. Several officials have been quoted saying that about ten candidates remain under serious consideration. But at least one name has been ruled out. That’s Secretary of State Hillary Rodham Clinton, whose name has been rumored as a possibility, but it’s not being considered. White House Press Secretary Robert Gibbs told reporters in his daily briefing yesterday that President Obama has no plans to move Clinton to the judiciary branch.

The White House is looking for confirmation hearings to take place no later than July, allowing for a vote before the Senate recess in August.

Whomever President Obama decides to nominate will have big shoes to fill. Justice John Paul Stevens, turning ninety later this month, was nominated to the Supreme Court in 1975 and will become the fourth longest serving justice in history when he retires. At the White House, Obama paid tribute to Stevens’ thirty-five years on the bench.

    PRESIDENT BARACK OBAMA: He’s worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint. He will soon turn ninety this month, but he leaves his position at the top of his game. His leadership will be sorely missed.

    Now, as Justice Stevens expressed to me in the letter announcing his retirement, it is in the best interest of the Supreme Court to have a successor appointed and confirmed before the next term begins, and so I will move quickly to name a nominee, as I did with Justice Sotomayor.

AMY GOODMAN: Stevens has long been regarded as the leader of the “liberal” wing of the Supreme Court. The Alliance for Justice said in a statement, quote, "Justice Stevens has become an unparalleled champion of the Constitution in the face of the Court’s increasingly conservative jurisprudential trend. He has emerged in the past decade as one of the Court’s most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice.”

Nan Aron is president of the Alliance for Justice. She joins us today from San Francisco. And joining us via Democracy Now! video stream, Glenn Greenwald, constitutional law attorney and political and legal blogger for "http://www.salon.com/news/opinion/glenn_greenwald/">Salon.com.

But, Nan Aron, we’re going to begin with you to look at the legacy of Justice Stevens. Talk about the key decisions he was involved in, but start off by just what he represents, having begun, well, by being nominated by President Ford.

NAN ARON: Thank you, Amy. And it’s good to be here.

Thirty-four years ago, he was appointed as a Republican to the United States Supreme Court. During those years, he operated very much as a conservative jurist, but demonstrated, as other justices have on the Supreme Court, including recently Sandra Day O’Connor, that he can evolve, and he is a justice who became much more open-minded, much more understanding of the problems that ordinary individuals, ordinary Americans face.

It’s interesting to me that so many people refer to Justice Stevens as a liberal icon. To me, he was a justice for all people, because, particularly in later years, whether it was a case involving campaign finance reform, opening the floodgates for corporate money to spend unlimited amounts during campaigns, whether it was Lilly Ledbetter, who was told or found out twenty years after being at a plant that she was being paid less than others and not able to recover compensation, time and time again Justice Stevens spoke up and spoke out for ordinary Americans on the Court. Death penalty, civil rights, affirmative action, the case of Susanna Redding involving a thirteen-year-old who was strip-searched for having or being accused of having Advil — he was a voice on the Court talking about how the law interacts with individuals.

And particularly now, at a time when the Court, directed, driven by Justice — Chief Justice Roberts, is on a campaign to tilt the Court in a very rightward direction in favor of big business, powerful corporate interests, it was Justice Stevens who spoke out. Even Bush v. Gore, the year 2000, his voice was the loudest, the clearest, in saying what the justices had done in that decision was wrong.

So, as you said earlier, he leaves very, very large shoes to fill, and we’re hoping and counting on the President to pick a worthy successor to him.

AMY GOODMAN: And Nan Aron, talk about, in the separations of power and due process issue, those two key decisions, Rasul v. Bush and Hamdan v. Rumsfeld.

NAN ARON: He’s probably best known for decisions — recently, that is — that basically extend habeas corpus to detainees, as well as a very, very vocal voice against placing detainees in unlimited detention. And, of course, those decisions were rendered during the Bush administration at a time when the country was dealing with the aftermath of 9/11. And it took courage, it took independence, for him to render those decisions and render them in the way that he did. So it’s not just on issues involving corporate power, civil rights, women’s rights, but probably most importantly on executive power. He will be best remembered, recently, for trying to place some limits on expanding executive power over the rest of government.

AMY GOODMAN: This interesting story, when he clerked for another Supreme Court justice, Wiley Rutledge, collaborating with him in his lengthy dissent in a 1948 case involving the wartime detention of German-born US citizens. He cited that later.

NAN ARON: Yeah, I mean, he’s — yes, absolutely. He was a justice who served in the military and, from time to time, would bring in experiences, principles that he had learnt over his military years. So, in fact, he was a staunch believer in a strong military, but yet understood the importance of separation of powers and a limited role for the executive branch in certain circumstances.

AMY GOODMAN: And the issue of environmental protection, the 5-to-4 decision in Massachusetts v. EPA in 2007, explain that decision, where he weighed in.

NAN ARON: Well, there have been some very striking decisions involving EPA’s ability to regulate clean water. And in two cases in the Supreme Court, he stood up against the Roberts Court and dissented in opinions that essentially reduced EPA’s reach over polluters, leaving 1,500 investigations by the EPA not able to go forward. It’s particularly important, in the area of the environment, to look at what the Roberts Court has done and to again acknowledge the role that Justice Stevens and some of the other moderates on the Court have done to try to put the brakes on the Roberts Court again. It’s an instance where his voice will be sorely missed.

It’s interesting, to me, that many people say, it’s just a vote on the Supreme Court, and therefore it doesn’t really matter who replaces Justice Stevens, because he was a vote. And I think, from looking at his thirty-four years on the Court, he wasn’t just a vote, but, as some have said, he was a voice. So I think it’s incumbent, when looking at the current roster of names being proposed, that we think about not just simply a vote, but who will be a leader, who will be the master tactician on the Court that Stevens was, who will be willing really to speak truth to power and to be a courageous voice on the Court. And therefore, I think the choice for the President is a very serious one and one — and I’m glad to see — that he’s taking his time making. He’s expanded his list of nominees. And I think he recognizes, as we’ve seen in his writings, in his speeches on the Senate floor when he represented the Senate of Illinois, he understands the importance, not just of the Court, but of the singular role that a justice can play on this Court in bringing about justice for millions and millions of Americans.

AMY GOODMAN: Just who will replace him is what we’re going to talk about next. Our guest is Nan Aron, president of Alliance for Justice, and Glenn Greenwald will weigh in, as well, constitutional law attorney and blogger for Salon.com, after break.

[break]

AMY GOODMAN: Coming up next, we’ll be speaking with the Pulitzer Prize-winning writer Alice Walker. But now, we’re staying with John Paul Stevens, the Supreme Court justice who’s retiring, who will replace him. Nan Aron, our guest, president of Alliance for Justice; Glenn Greenwald, constitutional law attorney and blogger for Salon.com.

Nan Aron, go through the list of who you think will be chosen and who you think should be chosen.

NAN ARON: Well, I think, as we’ve all read over the past several days, there are three names that have been talked about the most. Those include our current Solicitor General, Elena Kagan, who, as people know, was the dean of Harvard Law School for several years and worked in the Clinton Justice Department, and now she’s our nation’s Solicitor General.

Merrick Garland, a judge on the DC Circuit Court of Appeals, formerly a lawyer at the Justice Department, had some stints as being a prosecutor and worked for a little bit at Arnold & Porter, he’s a leading favorite for some of the conservatives, and even some ultra-conservative groups have spoken out in Merrick Garland’s favor.

The third name heard most frequently, Diane Wood, is currently a judge from Chicago on the Seventh Circuit Court of Appeals, was appointed by President Clinton during 1990s and served with distinction on that court ever since that time; before that, did some work at the Department of Justice in the Antitrust Division.

Apart from those three names, there are several others that are mentioned. As you talked about earlier, Hillary Clinton has now been dismissed as a candidate. Harold Koh, legal adviser to the State Department, Pamela Karlan, a law professor at Stanford Law School, are two names mentioned. Yesterday, two other names were talked about. One is Sheldon Whitehouse, a senator from Rhode Island, who sits on the Senate Judiciary Committee. And those individuals proposing his name believe that putting up a senator might avoid a bruising Senate battle, because Senate colleagues tend to favor their friends, people they’ve worked with in the Senate. And I guess the final name talked about is a judge on the Ninth Circuit Court of Appeals for Montana, went to college, law school in Montana, Sid Thomas, again, in his fifties, put on the federal bench by President Clinton and considered by lawyers, litigants, judges, as a prominent, thoughtful judge.

So there’s, I think, a very, very good list, and I may have not thought of some, but I think those are most of the names that we’re hearing at the moment.

AMY GOODMAN: Nan Aron, I want to thank you for being with us, president of the Alliance for Justice.

Glenn Greenwald, I’d like you now to go through talking about who — how you evaluate some of these candidates. Your latest "http://www.salon.com/opinion/greenwald/2010/04/12/kagan/index.html">blog is called "The Case Against Elena Kagan" at Salon.com. Why?

GLENN GREENWALD: I think the starting point has to be that the three nominees, likely nominees, identified correctly by Nan Aron as the frontrunners — Elena Kagan, Judge Garland and Judge Wood — of the three, none of them would be more progressive than Judge Stevens. I don’t think there’s a single person anywhere who would suggest that that’s the case. There are a couple of possibilities, like Harold Koh and Pamela Karlan, whom Nan also discussed, who very well may be as progressive as, if not more progressive than, Justice Stevens, but most people believe that they’re not really viable choices. But the three frontrunners certainly are not more progressive than Judge Stevens.

And I think it’s very clear that two of them, Elena Kagan and Judge Garland, would actually be more conservative, perhaps much more conservative, than Justice Stevens would be. So what we’re talking about, if either of those two individuals are chosen — Elena Kagan, the current Solicitor General, or Judge Garland — what you’re really talking about is the effect of moving the Supreme Court to the right. Remember, this is a Supreme Court that’s already dominated by conservatives. You have Justices Scalia, Thomas, Roberts and Alito forming a basically impenetrable right-wing bloc, with Justice Kennedy, who was a Reagan appointee, frequently joining them. [no audio]

AMY GOODMAN: We’re talking to Glenn Greenwald, but we are talking by video stream, so sometimes it just gets caught up for a second.

Glenn, keep going.

GLENN GREENWALD: So we’re talking about the very real possibility here that President Obama, a Democratic president who progressives worked very hard to elect, with a Senate of fifty-nine Democrats, could actually move the Court to the right.

And what I’ve been focusing on is the record of Elena Kagan, because it’s well known that Judge Garland is clearly a moderate to conservative justice, and he has a long record of judicial opinions that people can go and read and see where he falls on the spectrum. Elena Kagan actually has very little record to speak of that would enable anybody to know where it is that she falls on the political spectrum.

And I think that issue, the fact that she has so little record, is disturbing in and of itself. I mean, why would progressives or Democrats, with an opportunity to replace somebody like Justice Stevens, possibly want to take a huge risk of appointing somebody to the Court whose judicial philosophy can’t really be discerned, because she’s spoken out almost never on most of the key constitutional and legal questions of the day? And that even includes, over the last decade, when there was an assault on the Constitution and the rule of law by the George Bush administration, and virtually every law professor, academician, anyone of note in the legal community, spoke out against what it was that Bush and Cheney were doing. She was completely silent. You can’t find a single utterance from her, in writing or orally, where she expressed a view one way or the other on the radical executive power claims of the Bush administration.

And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.

So I think there are a lot of reasons to be extremely worried about the prospect of the nomination of Elena Kagan, and the fact that she has very little record is, by itself, disturbing, and the little record that she has is even more so.

AMY GOODMAN: Why do you think she has moved to the forefront? There’s been a big discussion about the fact that she has so much bipartisan support, Glenn.

GLENN GREENWALD: Well, we know that this administration loves the idea of pleasing conservatives, and anybody who is pleasing to conservatives is somebody who is much more attractive as a political appointee than somebody who is perceived as liked by the left. I mean, one of the very few important nominees that a President Obama made to an important position, Dawn Johnsen, was somebody — who was liked by the left, was someone whose nomination was left to linger for fourteen months and just abandoned. She was the nominee to head the important office of OLC.

So, Elena Kagan is perceived as someone who is very good at accommodating right-wing perspectives. She did when she was the dean of Harvard Law School. And at her confirmation hearing for Solicitor General, Republicans couldn’t praise her lavishly enough. I mean, she had a colloquy with Lindsey Graham, the Republican senator from South Carolina, where they were in complete agreement on virtually every issue involving terrorism and executive power. And even the furthest right-wing polemicist, like Bill Kristol and Ed Whelan, who currently writes for National Review and was a lawyer in Bush’s Office of Legal Counsel, have praised her quite, quite emphatically as someone whose views on national security and terrorism and civil liberties they find quite palatable.

On top of that, she is a steadfast Obama loyalist. She spent the last fourteen months defending his administration and the positions that his administration has taken and the Supreme Court. She’s somebody who clearly likes executive power, which, if you’re Barack Obama, who has asserted broad theories of executive power, will be attractive on the Court. And simply politically, it’s easier to get confirmed someone who’s perceived as being, and who is, a moderate, or even a conservative, than it is to get someone confirmed who is a liberal. And for those reasons, I think that nominee might be very appealing, politically and substantively, to the Obama White House.

AMY GOODMAN: [inaudible] a blog about the death of Dawn Johnsen’s nomination and the significance of her withdrawing from being a nominee to head the Office of Legal Counsel. Why is this such a significant position? And why do you think — and do you think — she was forced out?

GLENN GREENWALD: Well, the Office of Legal Counsel is incredibly important. It’s essentially the office within the Justice Department that determines the scope and limitations of presidential authority. It’s the office that George Bush and Dick Cheney used, for example, to legalize torture and warrantless eavesdropping, because opinions issued by that office become the binding opinion of the executive branch. So it’s the office that is charged with opining about the proper limits of executive authority, what the President can and can’t do under the law and the Constitution.

What made Dawn Johnsen’s appointment as OLC chief so extraordinary and something to celebrate — and I did celebrate it when it was announced back in January of 2009 — was that she was one of the most vocal opponents of the Bush assault on the rule of law and the Constitution. And not only was she an opponent of it — [no audio]

AMY GOODMAN: Again, Glenn Greenwald, sometimes we lose him for a second.

Go ahead, Glenn. Keep going.

GLENN GREENWALD: Sure. She was such an opponent of what Bush and Cheney were doing, not just legalistically, but she was arguing that it ought to provoke much more outrage among the citizenry than it was. And she especially was vehement about the fact that whoever succeeded George Bush could not possibly take the position that we should just move on from those crimes, that instead we have to have full disclosure, allow courts to adjudicate whether or not what was done was illegal, in order to restore national honor. And so, she was really, for Washington, a very outspoken advocate of the rule of law and of the idea that what Bush and Cheney did was not just wrong, but radical and extremist and dangerous and tyrannical.

And what’s interesting is, is that when she was appointed, she seemed like a natural choice for Obama, because candidate Obama echoed many of those same themes. But as the Obama administration went on and it became apparent that what candidate Obama said bore very little resemblance to what President Obama was actually doing — he wasn’t just — he wasn’t repudiating Bush-Cheney executive power theories, he was embracing them — it became clear that the Obama administration would have a very difficult time having someone like Dawn Johnsen head an office like the Office of Legal Counsel.

And even though they had the votes throughout much of 2009, when they had sixty Democratic votes in the Senate, plus Senator Richard Lugar, the GOP senator from Indiana, her home state, who also said he would vote for her nomination, they never brought her up for a vote. They let her linger. And they never did anything in order to secure her confirmation. And finally, she withdrew.

And the reason it’s so significant is because it means that somebody who has her views, that the rule of law actually matters, that when presidents break the law we have to have accountability and not say, ‘Well, we just need to move on,’ the way that President Obama has done, it basically means that somebody like that can’t be confirmed to an important office and that the Obama administration doesn’t want somebody like that in a position of influence and authority. And I think it’s quite a revealing moment.

AMY GOODMAN: Glenn, the significance of Justice Kennedy being the one to choose the person writes the decision if the chief justice is not in the majority?

GLENN GREENWALD: Well, of course, Justice Kennedy has been the key swing vote on most of the important issues over the last decade, and on — and it’s a sign of how conservative this Court has become that he’s actually considered a moderate. I mean, he was a solid right-wing choice by President Reagan, and yet he has been the key vote on most of the executive power decisions of the last decade imposing some restraints on what the President can actually do.

And the ability of Justice Kennedy to choose who writes the opinion, I think, illustrates how important of a voice he’s become and how important it is to have somebody who will at least maintain the balance of the Court, replace Justice Stevens in a way that doesn’t shift the Court to the right. And I think that ought to be the principal concern of all progressives.

AMY GOODMAN: Finally, who would you like to see as Supreme Court justice, Glenn Greenwald?

GLENN GREENWALD: Well, I think the choices that I’d like to most see are probably ones that aren’t going to happen, as I indicated earlier. Harold Koh, the former dean of Yale Law School, and Stanford Professor Pamela Karlan, and even Leah Sears, the former chief justice of the Georgia Supreme Court, are all exceptionally intelligent and capable justices who have indicated, through a long record, that they approach the law and the Constitution similar to the way that Justice Stevens does.

Among the three frontrunners, Diane Wood is a brilliant judge, and she’s been viewed as the sort of liberal, intellectual alternative to the conservative judges on the Seventh Circuit, like Judges Posner and Easterbrook. And of the three frontrunners, she is clearly the one that progressives ought to be hoping that Barack Obama nominates.

AMY GOODMAN: Finally, Nan Aron, if you haven’t left, very quickly, the involvement of right-wing groups in decisions around who should be chosen, and the significance of a confirmation hearing coming up for an appeals court judge this Friday?

NAN ARON: Well, I wanted to say, I think Glenn has very accurately portrayed the role of these groups in sinking Dawn Johnsen’s nomination. And over the past few days, many of these same individuals have been whispering sweet nothings into the ears of the press and senators about various nominees to the Supreme Court. I think we have to accept the fact that no matter who the President puts up for the Supreme Court, they will resist, they will oppose, they will do whatever they can to defeat that candidate. And therefore, I think this is an opportunity for the President to choose someone that he likes, that would suit the country as a whole, and not take into account the comments and words of various groups on the right whose only goal is to defeat not only this nomination, but, frankly, the President’s entire political agenda.

AMY GOODMAN: Nan Aron, I want to thank you for being with us, president of the Alliance for Justice, and Glenn Greenwald, constitutional law attorney and blogger for Salon.com.

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