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Obama Vows To Move Quickly to Fill Court Vacancy

Publication Date: 
April 09, 2010
PBS Newshour with Jim Lehrer
Judy Woodruff

Professor Kathleen Sullivan participates in a discussion about Justice John Paul Stevens' retirement, possible candidates to replace him, and the confirmation process. Judy Woodruff of PBS hosted the show:

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.


JUDY WOODRUFF: ... 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: 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.