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tv   Justice John Paul Stevens Legacy  CSPAN  September 18, 2020 4:26pm-5:44pm EDT

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of the american people. >> watch live coverage of the first presidential debate, tuesday, september 29th on c-span and watch all of c-span's debate coverage live or on demand at there's also a link to our campaign website with campaign videos, candidate information and election results. go to or listen live on the free c-span radio app. c-span, your unfiltered view of politics. and now on c-span3, a conversation with former supreme court clerks on the legacy of john paul stevens from the bar association of san francisco. it is about an hour, 15 minutes. >> hi, everyone. good evening, thanks so much for coming to tonight's program. the impact of justice john paul
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stevens. my name is ben feuer. i'm also the chairman of the appellate section of the bar association of the san francisco which organized this event. i would like to extend a welcome to members of a few groups who are cosponsoring tonight's program, the ninth judicial historical society and the american constitution society bay area chapter. i'd like to welcome c-span which is brother aadcasting the discu tonight. in ten years or so that i've been putting on programs like this, this is the first time c-span has come. so we've made it. but truthfully, i think c-span has some of the most interesting programming on all of television, at least when congress is out of session. and so i recommend you check it out, if you don't already. before we begin, i would like to ask everyone to put their phones on vibrate.
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the next program that we're going to be putting on, on january 28th, is on settling cases in the ninth circuit. if that interests you, be sure to sign up. we're also going to save time at the end of the night for questions. if any questions occur to you while our panelists are discussing whatever they're discussing, write them down so you don't forget them. now i will introduce tonight's panelists. to my left is leondra kruger. she was the acting deputy so lister general under president obama. she argued 12 cases in the united states supreme court and twice received the attorney general's award for exceptional service which is the highest award for employee performance. she's a graduate of harvard college where she was editor of
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chief of the yale law journal. she clerked on the u.s. court of appeals on the d.c. circuit and then for justice stevens. to her left is jeff fisher codirector of the litigation clinic at stanford law. he's one of the leading authorities on supreme court practice and he's argued over three dozen cases in that court. he was the winning advocate in crawford v. washington, in riley against california, and he was one of the plaintiff's counsel against hodges on same-sex marriage rights. he clerked for the late steven reinhardt on the circuit court of appeals and for justice stevens. kathleen harhnett is in private
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practice where she represents plaintiffs and defendants. she served as assistant attorney general in the civil division of the u.s. department of justice. she's a graduate of harvard college and law school and clerked for merritt garland and for justice stevens. finally on the far left of this panel, which is probably not a phrase he's going to hear very often is daniel bress who was on the ninth court of appeals. after law school he clerked on the fourth circuit court of appeals and the late justice anton scalia on the supreme court. let's get the ball rolling with justice kruger who is going to
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discuss his approaches to judging. >> terrific. thank you. thank you for the opportunity to participate in this wonderful event remembering and celebrating the legacy of justice john paul stevens. i think others tonight will address other aspects of the justice's remarkable service, his 35 years on the u.s. supreme court and the impact that his work had on the substance of the court's juris prudence, on his judicial philosophy. i'm going to focus a little bit more on how i best knew the justice which was as his law clerk in the 2003 to 2004 term. what i observed from watching him about not the substance of his approach to deciding cases but the sort of day-to-day habits of judging. it's one of the great values of a clerkship that you go through
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three years of law school, you spend all of your time reading supreme court opinions, picking them apart, deciding what kinds of arguments you find persuasive and which ones you don't, but you have no idea how the job is done. how do they decide the most difficult questions that can arise in our country, who do they listen to? how do they talk about what they do? and looking back on it and particularly now that i'm a judge myself, i feel so fortunate to have learned those things from justice stevens. i knew before i started the clerkship that my job was going to be different from that of some of my colleagues. i knew that i was going to be writing a lot of separate opinions. justice stevens was even at that time the leader in number of separate opinions written. i knew that unlike some of my colleagues down the hall, i would be reading fully
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one-fourth of all of the pa tigtig petitions for review. i knew that we would be going our own way frequently. i didn't know the reason why until i started the clerkship and i learned over time from listening to the way he talked about cases and talked about each of these things that it wasn't because he was so enamored of his own voice, it wasn't because he didn't know how to get along with others, it was because he felt it was important for him at a very fundamental level to decide each case according to his best judgment about what the law commanded, whether others agreed with him and whether they didn't, wasn't his primary concern. he knew that his job was to do not what the crowd wanted him to do, whether the crowd be majority of his colleagues, whether the crowd be the desires of politically powerful people in our system, whether that
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crowd be the wishes of the public. but he knew that his job was to do what he felt was right under the law. and not only that, but to be transparent and honest about his best understanding about what the law commanded was. he was, i think, sort of famously resistant to labels like liberal or conservative. it wasn't because he misunderstood what people meant when they used them, but he found them misleading and i think pernicious because he understood that what he -- his job was was fundamentally different from a politics. it was a running joke among his law clerks that we really had no idea what his politics were even though he had been a lifelong republican. he was appointed by a republican president. but we didn't have the first clue who he had voted for in any of the last several elections. it was a point of pride for him,
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he told us, when he was sworn into the supreme court, he was sworn in at the supreme court itself and not at the white house as some of his colleagues had done and that was because the symbolism was important to him to demonstrate that once he took the oath of office, he was not be holden to the president who appointed him or any political force. he was there to serve people of all parties and to do equal justice under the law. we're surprised to discover he accepted an invitation to attend a state dinner at the white house, given his general antipathy towards anything vaguely political. we were hoping he would come back to work the next day with juicy insights into his political leanings. it was a time when people talked about politics quite a lot. it was not very long after bush v. gore, but if we were hoping for something juicy, we were
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disappointed. when he came in the next day, the most he told us is the president is very attractive. that was the single most political commentary we got from him the entire year. it's hard to talk about justice stevens without mentioning his famous humility which sounds like a little bit of a patronizing word to use to describe a supreme court justice. there's no other way to describe it for somebody who is as brilliant as he was, who was experienced as he was, who had a position of such incredible responsibility and public trust. he wore all of these things incredibly lightly and had a way of drawing even his law clerks into his circle in a way that felt warm and welcoming and that extended equal respect to all. this was apparent nowhere quite so much at oral argument where he would hang back until the
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latter half of the argument and waiting for a little gap in the barrage of questioning. he would say, counsel, may i ask as just one question, as if he were asking for permission. as somebody who had seen this happen dozens of time, i knew it was coming and all the same, to be sort of facing the barrage of questions and have this gentle voice peek in ask for permission is disconcerning. but he wasn't asking permission, obviously, when he prefaced his questions in that way. it was his way of signaling respect for the advocate as a partner in this endeavor of finding the answers to these difficult questions that came before the court. and that sense of humility and modesty and treating others as partners in this endeavor was something that was pervaded his
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approach to working on cases all the way through. at the time that i clerked for him, justice stevens had been a member of the u.s. supreme court for almost 30 years which was longer than i had been alive. he knew a thing or two about the law. we used to joke among ourselves that whenever you picked up a new case and started working it up, about half the time you would be reading the relevant precedence and discover that justice stevens had answered the precise question presented in the case 20 years early in a two-page separate opinion written on a semirelated subject. but even though justice stevens had been around a long time, he had seen a lot of the law's development. he had been a central player in a lot of the relevant development, he always remained open to rethinking his views. he always did the work. he read the briefs carefully. he read the cases again. he was open to changing his mind. i didn't happen very often.
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nine times out of ten we would talk about the case and look back at the separate opinion and say, i still think we were dead right. dead right was a big phrase for him. but he was always willing to do that work, had the humility to consider and reconsider his views to make sure he was getting the law as right as was possible to get it. the last thing i'll mention is his approach to writing opinions which i think is also emblematic of the diligence of humility in which he approached the work. he wrote the first draft of each opinion himself. it was a habit that he had acquired as a law clerk to wily rutledge in the late 1940s and the reason he did it was not so much because he was especially concerned about the particular
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way that words or phrases appeared in his opinion, but it was a discipline function for him. it was his way of ensuring that the vote he had cast at conference based on his review and study of the case was actually correct. and so he wrote down as much as he needed to write in order to ensure that he was actually thinking the case all the way through. and so sometimes he could discover in writing out that first draft that the opinion just wouldn't write. and when he discovered that, he did not hesitate to change his mind, to let his colleagues know that he would not be writing the majority opinion after all. and that openness and the diligence that it takes to reflect and to drill down as deeply as necessary in order to ensure that you're doing the right thing is i think one of the most important lessons that
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i as a law clerks learned from justice stevens. i will end with a reflection on how i think justice stevens himself would have described himself as a judge. last year in may, as it turns out, about two months before the justice's passing, his former law clerks gathered in florida near his home to celebrate with him his 99th birthday and the release of his memoir. and we had an opportunity to ask him questions, including questions reflecting on his life and legacy. one of the questions was, you had lived such a full and remarkable life, what advice do you have for those of us who would like to follow in your footsteps. i think maybe i'm projecting, but i think we were all pretty hungry for the answer to this question. i don't know exactly what i was expecting. some set of prescriptions would
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have been nice, eat a grapefruit a day, take up bridge or, you know, walk 10,000 steps each day. but his answer was nothing so p prescriptive. his answer was work hard and do your best. and i've thought about that often in part because justice stevens wasn't the kind of person who dispensed advice readily. i think he thought it was presumptuous to tell people what they should or shouldn't be doing. but it has as good a summary of his record on the supreme court as any other i can think of that for 35 years he worked as hard as he could in the service of the public to render impartial and fair justice and he always did his best. and it can only be the rest of our hope that we are successful as he was in that endeavor.
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>> thank you. jeff fisher, will you please tell us a little bit about justice stevens in criminal law. >> i would be glad to. thanks, before i get into that, thanks for having this event. thanks to the bar association for hosting it. thanks for inviting me to be a part of it. hearing the remarks starts a series of memories flowing and it's a neat opportunity to spend time reflecting on the justice in a way like this. thanks. i'm going to try to pick up on a couple of threads justice kruger talked about and run them through what he called in his memoirs perhaps his most significant majority opinion. it's a case that probably most lay people and many, many lawyers wouldn't even know by
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name. so i want to talk a little bit about that since the justice himself singled that out as an important feature of his juris prudence and as i do that, i want to try to weave together a bit of a story about the justice's pickiapproach to the and his interaction with his colleagues because i wholeheartedly agree that one of the defining features of justice stevens was his fierce independence, not just as a judge in general, but as a member of the court in terms of his own views and expressing them when he felt like there was no -- there was not a voice on the court. but at the same time also by the time i clerked for the justice, he was the lead associate justice on the court, the one with the most seniority. he found himself in a position to do things like assign
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opinions or build a coalition. i want to talk a little bit about that too and i think it's wonderful to have judge bress on the panel. a central character in this story is justice scalia. a lot of people know about the really special relationship justice scalia and justice ginsburg had on a personal level and on the court. but justice stevens and scalia had a special relationship with each other in many ways. i remember actually one day when i was clerking and the justices came back from conference, and he was telling us as he would, here is how we voted and here is how the opinions look like they're going to be assigned. he described a case where he was going to write the majority opinion and he told us as he would call, he would say, kn ni was going to do the dissent. and i think justice stevens saw
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our body language and said, it's okay, i can take his heat. they had kind of a neat relationship with each other. so the doctrine that i want to talk about in criminal law deals with the defendant's right not to be punished anymore severely than the jury's verdict allows. and this doctrine in a sense is a great way to talk about justice steven's independence to start with. after justice stevens joined the court in the 1980s, congress started to pass a new kind of sentencing law which took ordinary crimes and then specified particularly factors that would increase a defendant's punishment or at least require a mandatory minimum punishment, something like using a gun was found, or harming a victim in a particular way.
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and the way that these laws were written typically left that to the judge after the jury had found a verdict of guilty on the regular crime. and so this issue first came to the court in 1986 in a cased called mcmillan versus pennsylvania. and the court wrote an eight-justice decision saying this did not violate the defendant's due process rights. and the lone dissenter was justice stevens. he wrote a dissent where he said, if this is okay, then legislatures can have a broad crime like assault and have people punished more severely if the judge finds by a preponderance of the evidence that somebody was injured in a particular way or the defendant used a gun or a dangerous weapon or any number of other facts. and he thought that was too big an incursion on the defendant's
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liberty interest and not being punished any more than he deserved, any more than the jury thought should be allowed. and he wrote that lone dissent and then again found himself in lone dissent in 1990 where the court dealt with a similar issue under arizona's death penalty law. and he wrote, it's not -- i'm going to paraphrase. but he said it's not too late in the day for us to recognize that the constitution has something to say about a fact that increases somebody's punishment and that case it was not just increasing punishment in terms of prison, it was allowing somebody to be sentenced by death for a particular crime. and justice stevens wrote a solo dissent again in 1990 on that issue but was unable to move his colleagues. fast forward from 1990 to 2000. this is when the case comes up in front of the court. it was another one of these
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basic kind of situations where a particular fact, here it was committing a crime -- committing a hate crime was something that would expose the defendant to extra punishment, five extra years of punishment. and by 19 -- i'm sorry. in that ten-year period, justice stevens managed to persuade his colleagues, including justice scalia, who had been in the majority in those prior cases, that the constitution was in fact violated if a judge found a fact for himself or herself that increased the defendant's sentence. and that set in motion several more cases after that that applied the same principle to various sentencing guideline regimes at the state level and at the federal level. really creating a revolution in criminal sentencing practice in this country. and i think what's so extraordinary about that is it a
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time where we watch the ever changing membership of the court and we have so much conversation about whether when one justice is replaced with another, will that tilt the balance on an issue? will that cause the court to reconsider some changing membership in the court, at least not alone, that changed the outcome of this. he brought justice scalia around. he brought other justices around who were not on the bench at the time of those decisions, but also weren't necessarily inclined always to vote with him, including justice thomas, who joined in the majority in the 5-4 decision. and so i think that, what does that tell us about justice stevens' legacy in criminal law in this area that he thought was so important? well, i think -- i don't want to suggest that justice stevens was
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absolutely lockstep with his sle colleagues when it came to how he thought about this. i think he thought about it differently than justices scalia and stevens. i think he took it more from the impact on the individual and the stigma and punishment on the individual whereas i think justice scalia and justice thomas in this area have taken their queues a little more from a separation of powers perspective, in the sense the importance of the jury's participation in the criminal justice process and not having run around the jury. but either way i think what's extraordinary is you find justice stevens finding a way to bring different perspectives together on the court to reach a majority. and not by vote trading or not by haggling, but by reason, which was his gold star.
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and i think not just while justice stevens was on the court did this matter, but i think it has had ripple effects in other areas of the supreme court's docket. and even today when neither justice stevens or justice scalia are on the court. there was a case last term, for example, where justice gorsuch and justice thomas joined three appointees to apply the document in circumstances, so that lives on through other people. also there are other areas of law like the right to confrontation, like the requirement that criminal laws be written with sufficient specificity so that the populous can understand what they mean and the unfair notice as to what violates them. and in all these areas, in a sense the majority that justice stevens forge from different
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perspectives on the criminal law lives on today in all these other areas and i think in ways in his legacy, i think he was proud even when he stepped off the bench. and he would have been proud at the end of last term as well. >> fascinating. okay. kathleen hartnett, can you tell us a little bit about your views of justice stevens? >> thank you. and thanks so much for the opportunity to be here. i'm, too, enjoying my colleagues' and friends' stories and recollections. my thoughts dove tail with what you remember because i think all of us who had the honor of clerking with him just draw these life lessons that we continue to infuse our lives and practice with to this day. i clerked for justice stevens in the october term of 2001. it was the year after bush v gore. so, kind of low-key term from that perspective. and it's hard to believe that's 20 years ago. and so i thought what i would try to do is just bring some
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thought to how -- kind of dove tail with the judging side but more from the lawyering and legal practice side of it, but as i'm in private practice and have been in parts of my career, i think he brought up practice of the law sensibility, a litigation and someone enjoying and art and practice of the law to his work on the bench and seeing it, even though he had these great contributions into the doctrine and the deeper thought that is studied throughout the profession. i think his practicalities and enjoyment of legal practice is something that struck me and i think is something that will continue to inspire people as they approach cases. so, i would say that this is similar to some of what justice kruger was saying. even though he was on the bench so long and cared deeply about the aspects of legal doctrine, he was a practical lawyer at heart. he took each case as a new case before him, and he would have the thoughts about how this could relate to development.
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but i just had that remembrance of when he would -- especially if we had the merits case and he cracked open the briefs. it was there in front of you and let's just take this on from front to back. i think when you get a new case file in your job or in private practice or not, there's something about being a lawyer, especially if you're in litigation, where you have this new matter. each matter presents its own facts and really being excited to learn those facts and figure out not just how do i apply some scheme i have and make the facts fit in to what i want, but what's this case about? there's a genuine excitement for that. i think the enjoyment of having a new case before you and seeing each case as a real thing to be valued and not just a tool to be used to achieve some end, it was reflected in us as justice kruger pointed out. we would read the certain sus.
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we were to give our candid and independent view. at the end of the day, it was his decision, but that was a really great part of the job because he really wanted us to take the thin pro-state petition just as seriously as the thick amicus briefs. that was a serious part of our job and one that meant every case mattered. we didn't do bench memos. that would occasionally get some blow back that we have a little bit of kushy clerkship as compared to others. what he liked to do was read the briefs. i remember coming back from florida, he would spend some of his time at his home in florida and come back and say he was shaking the sand out. he would have to excuse himself as he dusted them off. and we all sat around a conference table together and talked through the issues. that was just a memory i have of how the practice of law should be fun. it's not just a job. it's a privilege.
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and i think this also dove tails with the duty i think he saw in drafting his first draft of the opinion. sometimes it would be short. sometimes it would be longer. it was for the reasons justice kruger said. but i think he did that out of duty and also out of enjoyment. i'm always struck by a case i worked on in my term. we had some interesting cases. but i somehow managed to not always end up working on them. but i did work on every case mattering made my caseship fun even though my cases weren't the most high profile ones. the federal energy regulatory commission, which i managed to not write opinions about, came back to me during my clerkship with justice stevens. it was an interesting case about the power of the agency to order electric companies to share lines with other electric companies and how much they had to do and what they couldn't do. in any event, the point of the
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story is he was doing his first draft and he kept coming in every morning. i was at my desk ready to get the draft. i said it's taking me a little bit longer than i thought. i remember for several days saying that's totally great, thank you so much. but it was clear to me that he was not only trying to make sure he understood the facts, laid them out to understand it, but he was delighting in this notion of how energy had been sold before, how and why congress enacted a lot of changes. this was not just to try to -- this was fun. we made ferc fun and made us all learn that you just all -- it's not just a job. it's a privilege. so, it was kind of this also notion of just the humility involved in that. this is something i try to bring into practice and i think is an important lesson for all of us as we kind of rise up in our practice in various strains is to not be above rolling your
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sleeves up, writing the first draft, making sure your arguments makes sense and not be above printing out the opinion and editing and looking up the case. another thing that strikes me in the same bain, he was notorious for remembering the clerks by the cases they worked on, sometimes to the clerk having failed to remember they worked on that case. but he would identify you as that and he was always right about that. i think a kind of final note about how much each case he saw is important in its own right and mattering is kind of the flip side of that is his ability to move on from cases. i think he, the clerk works on the case, and kind of concerned about the issues, which opinion. you're working on the descent, this type of thing. it can get heated at times. he had an ability to kind of -- i think the same -- he could not
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possibly care about each case individually and bring it to everything and also hang on to all of them. i think i learned from him a healthy way of giving it your all, doing your best with the one you have in front of you and having to find a way of letting it go and move forward and not let that paralyze you. that's something i admired about him. it's also something that the beyond-the-court writings after he was off the bench. i was happy to see he was a human being because i think we had a harder time letting go than he did. but he did care a lot and there were some that stayed with him. i think as a practitioner, and i think this is something i see as related to what do i draw from him as i think about the law practice more generally. and this is related to the writing separately point that justice kruger -- and i think you gave a very good explanation of how that kind of was not only to -- for the purity of thought, which i think it was where he believed he had a responsibility to explain publicly his view.
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if he can't get the group to come with him, he had no problem explaining that by himself, but also was a strategic point too. those separate writings could often be the basis of something further. also in my year again in the docket of cases that may not have been on the front page, he -- i just recall really strong memories of working on two separate opinions with him in it. there was no reason to write the opinion or as long as we did, but it was to him. it goes back to doing his job well and caring about each case and seeing each case as mattering and being worth it. one of the cases was a case about a private right of action. with justice ginsburg, i worked with him. it was justice stevens with justice ginsburg, at that point there were questions about implied rights of action. those were going away through a series of cases who weren't seen as the proper way by the
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majority of the courts. even though the writing was a little bit on the wall -- even more than a little bit on the wall at this point. we still gave it that dissenting opinion as it explained why we didn't think it applied to a particular statute was given as much importance as the important agenda that was carrying the day. he thought that was the right answer and the public deserved to know. the case on the death penalty, i think is an important area of his contribution specifically and is tied to the humility to no one being above the law and also just a sense of ensuring fair kofrgs every case, regardless of how challenging it can be. we had an 8-1 opinion, another highlight of my term where we were the 1. it was a death penalty case where a vietnam war veteran had been convicted of murder and sentenced to death. and his counsel at the death penalty hearing failed to put on any mitigation evidence in the phase and then failed to make a closing argument on behalf of
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the defendant. and the defendant was sentenced to death. and, again, we were 8-1 is not exactly where you want to be. but i think it was very important to him to not only -- to just really articulate not just the facts of the crime, which are obviously important and even the facts of the trial, but there was the explanations being given by the defense counsel was that it was a strategic move. looking back through my memories of the term i was re-reading the opinion and had forgotten we attached the transcript for the defense counsel was trying to explain and justify what it was in strategy. i think it's pretty clear when you read the transcript it was hard to see it as that. i recall the time and effort that went into the opinion to make the public record clear about what happened at this trial and why even though it was a poor circumstance, there was something very fundamentally wrong about it to the justice. and then i had not actually tracked it, but the case came back to the court several years later in 2009. and actually at that point there had been some withheld evidence,
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and he was able to -- at that point, the court by a majority was able to reverse the conviction and went back for further proceedings. there was a question of whether it was procedurally barred and that was justice stevens and the majority removing the death sentence on the case i had not looked back on and assumed the person had been executed. another example of a minor case not part of really -- part of some dock trienl trends, but got it's full writing the first time and having that come back to matter. i think i'll leave on a personal note. my year, we had went through justice rutledge's papers. if anyone's in d.c. with free time, they're quite interesting. my co-clerks and i went up to the paperers to see if we could find any interesting things he had written his justice to see if there was anything we could leave him with after we clerked. it's just a funny story. he apparently thanked the
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justice with a note saying thank you for my clerkship. i'm excited to come. he was under the misconception he was coming for a year. there was a note in the file where he must have been corrected by somebody in chambers that he should be coming two years. i think it sums up his humility. he never saw it as -- he was a lawyer practicing law at the supreme court. he was a judge, not a justice. he writes to justice rutledge, if you would like to have me stay for a second year, i would be happy to do so. my preference is to say one year, but this preference is no means cause to reconsider the position. whether it be for one year or two, and you'll be sure i'll do my utmost to do the kind of work to persuade you to keep me for two. i think that sums him up more than i could through commentary.
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>> terrific. s thank you. judge bress, perhaps you can tell us more about the relationship between justice stevens and justice scalia. >> thank you for inviting me. i'm glad to see so many people interesting in this topic and here to honor. i did not clerk for justice stevens. so, i'm sort of the joe six pack of this group here. i can offer comments that are much less informed than theirs. but what -- let me begin by offering just some personal reck leks from my time clerking on the supreme court, having seen justice stevens in action. one thing that i think really stood out is just the civility and the humility, the way in which he carried himself and the kindness he showed to everybody, whether they were a law clerk or
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a justice. and i think the supreme court is a small building. if you work there you start to learn the names. it's a tight community. justice stevens was very much a part of that. he was unfailingly polite. i never saw him at any point utter a negative word or look in a negative way at anyone. i think he always had a respect for the people who appeared before him and for the people who worked at the court and his fellow colleagues. that was something i admired about him. i will say too, the legacy of a justice in some ways carries on by the people who have the good fortune to clerk for her. and i think it's great to have three former clerks here who have accomplished so much in their careers. i can tell you there are so many clerk who is clerk for justice stevens who are now out in the world in academia judging in
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private practice and other things. i think it's such a credit to the justice and to what he brought to the law. so, it's really an honor to be here with all of you. i was such good friends with the stevens my year. i enjoyed getting to know them. i enjoyed doing runs to lincoln hill and back and having spirited discussions. i think within the court, to me the most striking thing about the way justice stevens ran his chambers was his non-participation in the circle. it's really interesting to hear the comments of you all having been on that side. for those of us on the other side, at the time he was the only justice who did not participate. and it is a significant part of the court, especially the law clerks, whose justices participated in it. the effect this had, at least for us working for the hs who were in the pool was that we never knew what the stevens chambers was thinking about different cases.
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and for those of us who are not in the chambers, it can be more of a black box when you've got a circ pool memo. over time you started to have an understanding of kind of who you were working with and who the other justice clerks were. and in some sense the justices themselves. even though the clerks reck men daugss and comments didn't always necessarily reflect the view of the justice. that was not true in the case of the stevens chambers and i think it had an interesting effect in terms of the dynamic of the court. and i think it speaks to some of the comments you've heard earlier about an independent streak that justice stevens had. i think with respect to the relationship between justice stevens and justice scalia, i was interesting in this having clerked for justice scalia. but i was also interested in this because i think in some ways for the period of time in
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the '90s and 2000s they were really the dominant voices in the court on two different sides of many different sides. i spent time looking at the areas of disagreements and agreement. the disagreements are more frequent than the agreements. i think it's hopeful -- i was thinking what cases really start to get at the differences and the different approaches that the two of them had? there are, of course the blockbusters, and we all know on many big issues they were on opposite sides. in some ways, i think, they were each their own favorite sparring partner. i think justice scalia loved to ride opposite justice stevens. and i don't know if justice stevens liked that too, but i kind of got the sense that he did in some of the opinions you're able to see. there was a case my term was not a blockbuster case.
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it was called zoony public school district versus the department of education. it was a highly, highly technical statutory interpretation and chevron case. i'm not going into the details of it because it is not -- it almost can't be discussed the case is so tactical. but i did write down what the case turned on. the case turned on the phrase, quote, disregard per pupil expenditures above the 95th or below the 5th percentile of such expenditures. so, that was the case. it was a case in which sort of a classic statutory interpretation case in which the plain language of the statute seemed to produce at least to some an unworkable and unintended result. it was i think to my mind the closest statutory case of all time. you came up from the town circuit. at the panel it was 2-1 at the town circuit in favor of the
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department of education. the 10th circuit took it. they then divided 6-6. then it came to the supreme court where it was 5-4 in favor of the department of education, finding that the statue was ambiguous. and the majority -- interesting line up. it was briar who wrote it, justice stevens, kennedy ginsburg and alito and dissents, thomas, and sooner. the case produced numerous opinions really reflecting the full views of statutory interpretation. justice kennedy wrote a concurrence with which justice alito joined saying if you join you agree the statute was ambiguous, but he would reverse the order of the opinion, but he would discuss the text first and the purpose of the statute second. and he had a line in there that he wrote, we must give deference
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to the author that matters. justice scalia said you better save that. i may need that at some point. scalia wrote a classic scalia dissent. the language was unambiguous, citing the return of the church of the holy trinity case that he's always pointing to elevation of statutory purpose over intent. it was the full scalia. it was apple sauce. it was everything. and justice stevens wrote separately specific to respond to justice scalia. and he -- it was a concurrence he wrote that was only his. and there were a couple -- there were two passages in particular. if you read the two opinions, you get a real flavor of the differences. this one i thought really hit it home. it said, justice scalia's argument today rests on the premise that every policy implements a judge's personal
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view of sound policy rather than faithful attempts to carry out the will of the legislature. quite the contrary is true of the work of the judges with whom i worked many year. if we presume our judges are intellectually honest, as i do, there's no reason to fear, quote, policy driven acts of congress. in the end it says given the clarity of congress' intention, i would affirm the judgment of the court of appeals even if i thought the petitioner's reading was correct. and i think this opinion among many others really starts to get at some of the core differences in the approaches. obviously there were different methodological commitments when it came to statutory interpretation. there were different starting points when it came to constitutional interpretation. but i think in addition to that, there were different views on the fallibility of judges and the trusting of judicial power.
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and i think that the sense i have from the stevens concurrence in that piece and in others was that based on experience that he had developed he was more trusting of it and i think it was something justice scalia was more distrustful of. and i think the role of experience is something that you do see in some other stevens writings too. something i've always found fascinating. his concurrence -- maybe it was a dissent in the lethal injection case in which he wrote separately to indicate his view that he felt the death penalty was unconstitutional. very striking part of that opinion, i'll read it here. i relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. i think the thing i respect a good deal about justice stevens' opinions is that they were quite
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candid. i think the candor and the opinions is helpful to get at what are the real issues that people try to focus on and what may have been motivating him in any given case. i think at the end of the day, when you look at the disagreements between the two, the disagreements were quite fundamental. and i think both of them did a very able job in laying out for the rest of the court and for the law-consuming public what their views were on some of the top issues of the day. when it comes to the areas of agreement, i think they're hard to find, but there seem to be mostly in the area of criminal law, which jeff alluded to. and jeff spoke about aprendi. i did notice in the memo too, he regarded most important majority opinion. of course that itself, i think he had so many important majority opinions. we could go on and on about some
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of the greatest hits. it was interesting that he featured that one as what he thought was the most important, and in some ways in terms of the impact it's had in a particular area of law, it may well be that it is his most important. it wasn't just aprendi. i think it was notable coming together as jeff referenced. you may remember the case about u.s. citizen who was held in the united states who had been picked up and had been -- the government had declared an enemy combatant, had been holding him in norfolk. the question was the level of due process he was entitled to. and it was actually justice stevens and justice scalia together who were the only justices who joined an opinion saying essentially that he either needed to be charged with treason or congress needed to suspend the writ of hab yus corpus, that he couldn't just be
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detained in another world as an enemy combatant. what is the explanation for the coming together in areas of criminal law? i'm not an expert on this. jeff is. it could be that it was jeff's extensive persuasion as an advocate before the supreme court on so many of these cases. but i think that -- i don't think it's the case that justice stevens in this one area sort of came to see the light, and i don't think it was justice scalia's moment in which he had certain concerns of fairness. i think they came at it from frankly different perspectives and ended up in the same place on it. skpie and it's really interesting that they did because i think it really did require the two of them to bring about a substantial change in the law in both criminal sentencing and
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confrontation clause, jurisprudence, i think two areas in which we can say this is a great legacy of justice stevens. but if this was a panel about justice scalia, we would be saying the same thing about him, in particular these two areas as well. they certainly did have a warm friendship. there was a funny anecdote in the making of a justice -- this is justice stevens' book. i encourage you to read this. i feel like i'm selling this book. it was a good book. it was a good read. he talks about one of his daughter's wedding, justice scalia was bumming cigarettes from one of the stevens' children. so, it was a warm friendship. and i always remember justice scalia walking with justice stevens and having -- you could tell they enjoyed the time they spent together, which was always great to -- as a law clerk and when you see your justices or your judge interacting in a friendly way with another judge or another justice, and when you
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know that they don't see eye to eye on many things and when you see that friendship and that rapport, i think it always gives confidence to the collective undertaking that is any kind of judicial body. so, it's really great to be here, and i've learned a lot just sitting here. >> thank you so much, judge. so, we're going to move to some questions from the audience. when we do this, there's a boom mic that they're going to pass around, so wait for the mic to get to you. and also we're going to repeat the question for also technological reasons that i've been told, to make sure that it gets on to the recording. give us a second to do that too, and we'll go ahead and answer. if anyone has a question or has something in mind that they want to ask, go ahead and raise your hand. but while you think about that, i guess i'll start with something to get the ballal rowing. judge bress, you mentioned situations in which justice
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stevens and justice scalia got to the same result from different perspectives. and that led me to sort of think about the time when they got to different results coming from the same perspective, the heller opinion, which i think was very interesting because you had a majority and dissent that were originalists. in one way or another they got to different types of originalism. i'm wondering if you have any thoughts about the way originalism may have played into or perhaps grown in interest to justice stevens, if it did, and perhaps you can ask the former stevens' clerks if they have any thoughts on that. >> that's me? >> sure, sure. or, unless you -- i don't want to spring it on you. >> no, i don't -- i don't think justice stevens ever described himself as an originalist. and i don't think he would -- he did seem averse to labels, but i think he would probably be particularly averse to that one.
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i think that -- i think the opinion in heller to me was an effort to show that in his view originalism could produce different results. it didn't necessarily yield a definite result. but it perhaps in his view could be subject to -- i think in justice stevens' view, in his view, any approach to constitutional interpretation, there was room for disagreement within originalism itself. now, obviously justice scalia responded and said i don't think this view of the second amendment is accurate as a matter of the original understanding. but i don't -- i don't think that the heller decision to me indicated on justice stevens' part any particular commitment to any form of -- any particular form of interpretation so much as to show that i can take your form and come up with a different view. >> i saw you nod, kathleen, do
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you think that's accurate? >> i thought that was an interesting observation. i was thinking about how time passed and by reflection about how it seemed like he was able to let things go a bit during my term, but reading of post-judicial writings how that seems less so. maybe in a slightly different mode of playing a game that wouldn't be the way he would write the opinion just to be ten years prior to that. so, i'm speculating, but it does seem interesting that over time -- it's three plus decades of working with these same people, i guess trying to see if you can beat them at their own game with an opinion would not be what i expected back in my term, but i can understand where that might have come from. it was a very interesting observation. >> okay. do we have any questions from folks in the audience? no questions -- i've got one question here. okay. >> hi.
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thank you so much for being here. i'm from the 9th circuit judicial historical society. thank you so much. my question is what aspects of judge stevens' mentorship have you brought into your own mentorship? and judge bress can also share what he learned of his mentorship. >> sure. the question to repeat it one more time is perhaps what aspect of the relationship, i suppose, between the judge and the law clerk, as you were law clerks, or other folks who were not judges, students or younger associates, younger folks in the legal profession you work with. from your experience with justice stevens, what have you incorporated into your own approaches and judge bress, his relationship with justice
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scalia. >> as i say, justice stevens wasn't -- he wasn't a person who offered a lot of overt advice. he wasn't one of these people who says, never do this or never do that. and nevertheless, the clerkship with him was one of the most significant learning experiences i've ever had. and much of that learning just happened through the process of sitting down around the leather armchair he used to sit in in the clerk's office and talking through a case and hearing his observations about how he thought about the lawyer's arguments, what worked for him in oral argument, what didn't work for him in oral argument, his unique take on how to think through the extensive, heavily foot-noted arguments that we had just read in the briefs. and the writing process, i think, was a particularly educational experience because, you know, even though, as i say,
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he wrote the first drafts of his opinions, they were often not very elaborate drafts. he wrote as much as he felt he needed to to ensure that he had thought about the case in the right way. but then at that point, he would hand the draft off to the clerk or in my day he would shoot it into your email and you would have a surprise waiting for you when he came back from lunch. and sort of leave it to the clerk to give his or her best take on how to sort of fully flush out an opinion that made sense of the difficult issues before the court and sort of fully explain the justice's thinking about the case. and then at that point we would trade drafts back and forth. that process of trading drafts back and forth and seeing his reaction to seeing your choices about what you might have made of how to explain what the law was in this area was incredibly
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instructive. it was a question of learning by watching and by example. and that is certainly something that i hope to do in my own relationship with my law clerks because it is such a valuable experience i think on both sides to have that open dialogue and to have that exchange of ideas and for both of us to learn through that process of conversation. >> you know, you mentioned felicity with email, which some people know is varying degrees of skill among the supreme court justices. and i recall when i was on the law review in north western many years ago, justice stevens wrote an article for the law review that year, and the editor in chief was particularly surprised at how good he was with the track changes function in microsoft word, which i still sometimes get messed -- and this is years ago. he certainly seemed to that have
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skill set even on the outside to folks he worked with. jeff, do you have any thoughts on justice stevens as a mentor to you or what kind of boss he was? >> well, i think justice kruger covered so much of that so well, so i don't want to retread all the ground. i'll just share a couple of things. i remember just picking up on those comments. every time he would come in from his chambers is just a few offices strung together by open doors or passageways, and he would leave his office and walk in to the law clerks to talk about a case. i think almost every time he would come up and say, do you mind if i interrupt you for a minute. it was kind of like the lawyers, right? like, yes, i think that's okay. i work for you. you're the justice. if you want to talk about something, that's okay. but i think it was just another one of those examples of the
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respect and the civility that he showed within his chambers, to his colleagues, to lawyers on the bench. so, as a law professor, i've tried to take that a little bit into my own interactions with my students if i'm working with them on a project or coming in. i'll sometimes steal his line in that respect. >> do you mind if i cold call you? >> and i think the other thing that -- maybe this is just crystallizing something else people have been talking about. maybe pick it up on the heller conversation a little bit. but my take on his dissent in heller was not that much of a surprise. i mean, i think that he never thought history wasn't important. i think that he thought history was important along with lots of other things. and i think that was -- that was the way he judged. and i think maybe some people
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might have criticized him by not having a theory that you could label or you could easily identify of a mode of interpretation. and i think that's something that, you know, we're talking a lot about justice scalia today. and that's something justice scalia did such a brilliant job of branding his approach to constitutional interpretation. and justice stevens resisted that. and i think one thing i've taken from that, right or wrong, but i think one thing i've taken from that is you have to be careful not to make things too easy on yourself. and i think justice stevens was always worried that if he looked only at the text of a statute and nothing else or if he looked only at the history and nothing else, he would in a sense make the case too easy. and i think that he thought he had to consider everything. and even if that meant reaching a really hard decision where the scales were nearly balanced, i think he felt that responsibility. so, when i worked through legal problems sometimes, i feel like i try to channel sometimes justice stevens', his lesson
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that he taught me there, which is don't let yourself off the hook. you have to think through every aspect of the problem before you reach a position. >> i think if i could just add to that, i think it was his resistance to particular sort of easily-labelled methodologies i think was to some extent his sense of humility, his sense of judicial modesty. and i think in the way i think justice stevens and justice scalia were similar in that judicial modesty and restraint was very important to both of them. and they just had, again, different ways of thinking that those values were best served. but he, i think throughout his career, i think it sort of made this clear in various ways that he thought that easy formulas, something not easy, but sort of simple, straightforward formulas for deciding cases were -- could
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be misleading, could send a judge off track and to sort of counterintuitively increase the judge's power to insert his or her own personal preferences as opposed to a broader morphing all things considered kind of approach that takes each case as it comes and considers all the relevant factors and a more holistic way. i think that that was, in his mind, sort of more consistent with a sort of more modest common law approach than a sort of more systematic consistent methodology. >> i have a question back there. >> i was thinking also about the legacy of justice stevens as the impact on the current core, not just jurisdiction prudentially. it was mentioned he was the sole person outside the pool.
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i know justice gorsuch is outside the pool. i don't know if he credited justice stevens as an express cause of that. but are there any sort of practices that justice stevens had on the court that either -- that any of the justices have sort of picked up where he left off? >> just to repeat the question, i think the question is really what impact on the court as an institution, i suppose in some ways, do you see justice stevens having, not jurisdiction prudentially but in term of the way the court functions or the way justices interact or anything with their clerks, if any. >> use of computers by the justices? >> that might have happened on its own. >> use of computers by the justices. maybe he pushed them to use computers because he was so good at computers, apparently. any thoughts? judge bress, any thoughts of how
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justice stevens might have impacted the way justice scalia approached what he did, if at all? >> i don't know. it's a good question, and i don't know that i know what the answer to it is. but i suspect there are ways. the thing that comes to mind to me, if anything, would be oral argument because i think that justice stevens was a powerful force in oral argument. i think he was someone who asked very penetrating questions. he didn't necessarily ask the most questions. he often asked the best questions or some of the best questions. and i think that perhaps he refined the practice of oral argument a little bit, those who have argued in the case of the supreme court have a better view on the case than i do. that's just maybe one area. >> okay. we've got time for one more question. yeah. >> thanks, ben. this is a question about the panelists' own perspective as
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opposed to justice stevens' experience. because we have so many accomplished people here having clerked on the supreme court, i wonder how they would say the practice of law differs at the federal appellate or trials levels versus the supreme court from a litigator's perspective. >> so, the question is sort of a general one, so i think that probably a lot of different ways to answer it. but what makes practice in front of the u.s. supreme court unique as compared to practice in front of other appellate courts? perhaps one way to start, justice kruger, is what do you think makes practice at the u.s. supreme court different, if anything, from practice in your court from the advocate who is appear and argue in your court? >> sure, the first question actually may be a little bit more straightforward to answer. >> go with that.
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>> we'll start there. i think the fundamental difference is that the u.s. supreme court, like the california supreme court, in matters of state law s a court of last resort. and it has mostly discretionary control over its docket. its primary purpose isn't to correct mistakes that happen in the lower courts. its primary purpose is to ensure the integrity and uniformity of the law across the entire united states and where there are questions that have come up that have confused the people in the trenches applying laws in the lower courts, the united states supreme court's job is to help provide answers and to advance the understanding and development of the law. what that means practically from a practitioners perspective is that you can be pretty sure when you walk into the united states supreme court that the answer to the question in your case isn't going to be dictated clearly by careful review of any existing
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precedent. that's the baseline. as we understand, this is a difficult question that is going to require us to resolve sort of poorly understood gap in the case laws that exist today or to resolve maybe a conflict between threads of cases as they've developed. and in approaching those questions, instead of arguing primarily from precedent, the nature of the argument tends to be more going back to first principles. so, as a practitioner writing a brief in the supreme court, sort of each sentence that you write, each plank in your argument, you have to ask yourself not only what is the rule, but why does this rule exist? and assure yourselves and assure the court that the rules that you are building on in order to answer these unresolved questions are ones that make sense, that are consistent with the precedent as we understand it, that are workable, that are
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administer able, that comport with the justices' best sense of what the law is. and so that's how i would describe the basic difference between appellate practice in general and practice in the supreme court. >> kathleen, do you want to say something? >> yes, i just think your question and the prior question prompted me to think about how justice stevens might think about that. one thing he did say at times was the constitution -- basically people would inadvertently call the justice a judge, he would say the constitution makes the same mistake. i think there was an interest -- it wasn't he saw the task at the supreme court as error correction or that he misunderstood he was not a supreme court justice and that with the appropriate role, but there was a humility and a sense that a judge is a person that's a fair arbiter of the matter before him subject to the proper -- whatever the task is being asked, to find facts, to hold trial, to conduct first
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principle's review of the constitution that's necessary. i think that connects to your question about what did he bring to the court more broadly. i think there was the sense of the modesty and that we're trying to infuse those conversations he had with people he was having direct conversations with to the point of let's talk about this as a judge would and not a notion of yourself as a supreme court justice above at all. but i also think that the sense of history that he brought to the court, which is why an event like this is so important to keep that conversation going, because not only was he on the court for so long, but he had clerked for the court in the '40s. so, it was almost like you were talking to someone out of another time. when you got to speak with him, it was a continuity on the court, not just in terms of he read the book about it and he was trying to recreate it. he lived it. the sense of what it meant to go through periods of our nation's time. there was a period he was working on in the '40s with
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pre-brown segregation case and whether to flow that through to another case. just that sense of history and i think as the court membership changes it was just a special connection to the true past and the lived past of the court and the nation that i think hopefully events like this will continue to make sure we don't lose sight of those things when we were judging. he brought all those experiences to bear when he was judging a case in the modern era. >> i think that's a great note on which to finish the program tonight. thank you so much for coming. let's give a round of applause to our panelists. [ applause ] weeknights this month, we're featuring american history tv programs as a preview of what's available every weekend on c-span3. the dwight d. eisenhower
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memorial dedication ceremony took place thursday with a keynote address by commissioner chair pat roberts and recorded remarks by condoleezza rice. the memorial honors the man who served two terms as president, following his service in world war ii in europe. watch the memorial tonight beginning at 8:00 eastern and enjoy american history tv this week and every weekend on c-span3. american history tv, exploring the events that tell the american story. coming up this weekend on "reel america," three films about the u.s. census from the 1940s, '50s, and '60s. and sunday at 2:00 p.m. eastern, eye look back at the 1918 flu pandemic and how it altered life living through the 2020 coronavirus pandemic.
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and then at 7:00 p.m., the 1960s second presidential debate between john f. kennedy and richard nixon. and at 8:00 p.m. eastern on "the presidency" the dedication ceremony for the dwight d. eisenhower memorial. frank gary, condoleezza rice, senator pat roberts, and president eisenhower's grandchildren. exploring the american story. watch american history tv this weekend on c-span3. >> sunday night on q&a, author and historian harold holzer on his book "the presidents versus the press." mr. holzer talks about presidents from fdr to president trump. >> when president trump tweets early in the morning, as he does almost daily, the news cycle immediately bends to his latest
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issue, idea, rant, complaint, attack. and half of the day's news cycle is devoted to rehashing his tweet and analyzing it and in the case of talking heads pushing back against it on some networks. i think this is nothing short of genius on the part of trump. obama may have been the first twitter president, but trump is a president of such mastery of twitter that he ranks, i think, with fdr in radio and jfk with television. >> harold holzer, sunday night at 8:00 eastern on c-span's q&a. the senate health education labor and pensions committee held a hearing on cleng athlete compensation. we'll hear from college officials as well as heads of
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