[Congressional Record Volume 165, Number 86 (Wednesday, May 22, 2019)]
[Senate]
[Pages S3042-S3043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRIBUTE TO JOHN PAUL STEVENS
Mr. LEAHY. Mr. President, it has been nearly a decade since Justice
John Paul Stevens retired from the Supreme Court. His absence on the
bench is perhaps felt more now than ever. Justice Stevens' nomination
was the first of 18 Supreme Court nominees I have considered in my
years in the Senate. As a young Senator, it was a privilege to support
his confirmation in 1975. It was a vote I have long been proud of.
Justice Stevens had a storied tenure on the Supreme Court and
ultimately became the third longest serving Justice in our Nation's
history.
Justice Stevens' commitment to the law and conduct on the bench was
beyond reproach. His legacy is one of integrity, dedication to public
service, and a recognition that the Constitution protects all Americans
equally. He was part of majorities that protected LGBT rights,
disability rights, and limited the death penalty.
The Supreme Court has never been perfect. Justice Stevens would be
the first to acknowledge as much, but I cannot help but compare his
many years on the Court with today. Today, the Supreme Court almost
reflexively sides with corporate interests over individuals' interests,
even when precedent or so-called textualism and originalism stand in
the way. We have also seen an unprecedented blockade of a Supreme Court
nominee, and we have a President intent on nominating the most
ideological nominees to the bench I have ever seen, nominees who have
been preapproved by opaque far-right special interest groups. Many of
these nominees have long records of outright hostility toward
reproductive rights, environmental protections, and voting and civil
rights. They even refuse to accept that Brown v. Board of Education, a
foundational civil rights decision settled 65 years ago, is indeed
settled law. It is equally predictable and deeply unfortunate that
Americans increasingly view the courts as a purely political
institution.
Our Constitution and laws are intended to serve the people,
protecting the freedom of individuals from the tyranny of government
and helping to organize our society for the good of all. It is up to
the judiciary to ensure our laws have meaning. This is a duty Justice
Stevens' recognized and relished.
How I miss his jurisprudence, his steady voice, and his leadership.
I ask unanimous consent that a May 11, 2019, feature by Robert Barnes
from The Washington Post entitled, ``John Paul Stevens looks back on
nearly a century of life and law, but worries about the future,'' be
included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, May 11, 2019]
John Paul Stevens Looks Back on Nearly a Century of Life and Law, But
Worries About the Future
(By Robert Barnes)
Fort Lauderdale, FL.--John Paul Stevens spent more than a
third of his near-century on Earth at the Supreme Court,
where he often was on a different page from a majority of his
fellow justices.
``It happens so often that you have to get used to
losing,'' Stevens, 99, said during an interview this last
week at his condominium here, just steps from the Atlantic
Ocean. ``My batting average was probably pretty low.''
[[Page S3043]]
But one particular loss lingers and, Stevens says, brings
grim reminders almost weekly: the court's 2008 decision in
District of Columbia v. Heller, which found the Second
Amendment protects a right to individual gun ownership
unrelated to possible military service.
``Unquestionably the most clearly incorrect decision that
the Court announced during my tenure on the bench,'' Stevens
writes in his new memoir, ``The Making of a Justice.''
Heller and the Second Amendment, Stevens said in the
interview, produce ``such disastrous practical effects. I
think there's no need for all the guns we have in the country
and if I could get rid of one thing it would be to get rid of
that whole gun climate.''
He continued: ``Just the other day there was another school
shooting in Colorado, and every time it happens, it seems to
me we don't have to have this kind of thing in this country,
and we should do everything we can to try to change it.''
Stevens writes of his efforts to try to make the 5-to-4
decision come out the other way. His 531-page book, to be
published Tuesday, details the life and career of a World War
II Navy code-breaker from a solidly Republican family,
nominated to the federal bench by one GOP president (Richard
M. Nixon) and elevated to the Supreme Court by another
(Gerald R. Ford) who retired in 2010 as the court's most
outspoken liberal. Although, Stevens believes the court
changed more than he did.
In the interview, he expressed generalized distress at the
state of the world and the nation's politics. ``You wake up
in the morning and you wonder what's happened,'' he said.
Still, he retains a judge's reticence even years after
leaving the bench: ``But I shouldn't say more.''
He does wonder why it is so challenging for his former
colleagues to recognize that partisan gerrymandering is a
constitutional violation, as they do with racial
gerrymandering. ``It's the same issue,'' he said. ``Public
officials, including state legislators, have a duty to act
impartially. The whole point [of partisan gerrymandering] is
to create an unfair result.''
And he expressed surprise about Chief Justice John G.
Roberts Jr., whom he respects and admires. ``I must confess
he's more conservative than I realized,'' Stevens said. ``But
that doesn't go to his quality as a chief justice.''
During the interview, Stevens was preparing for a reunion
of his clerks--more than 90 of 125 were expected to attend.
He must steady himself with a walker, but he remains active.
Tennis has been replaced by ping-pong, he said, but he still
plays nine holes of golf each week.
``I don't go in the ocean as much as I used to, and that's
really my favorite activity down here,'' he said. ``A strong
guy'' to help him in and out of the surf is now ``an absolute
necessity,'' he said.
It is hard to imagine that at his 1975 confirmation
hearing, soon after he became one of the first to receive a
heart bypass operation, the main obstacle was ``did I have a
sufficient life expectancy to justify the important
appointment,'' he writes. He was approved unanimously. The
memoir is a tale of a privileged childhood in Chicago, the
ravages of the Great Depression and a family scandal, service
as a wartime cryptologist and a charmed legal career as a
Supreme Court clerk, appeals court judge and the third-
longest-serving justice in the court's history.
Stevens was in the stands at Wrigley Field in Chicago when
Babe Ruth called his shot in the 1932 World Series--``my most
important claim to fame,'' he writes--and in the audience at
the Democratic National Convention that summer when Franklin
D. Roosevelt explained the New Deal on his way to becoming
president. His father, Ernest, who took Stevens to the
speech, was a Warren Harding Republican, however.
Amelia Earhart told him he was out too late for a school
night when she attended the grand opening of the Stevens
Hotel in Chicago, at the time the largest in the world.
Charles Lindbergh passed along a caged dove someone had given
him. On a trip to the South, Stevens and his family attended
``Gone With The Wind'' the week it in opened in Atlanta.
The invitations that come to a Supreme Court justice
provide other celebrity tidbits. He was as smitten as others
when he met Princess Diana, and an encounter with the
composer and conductor Leonard Bernstein provides a
surprisingly bawdy anecdote from the mannerly Stevens, who
often prefaced his questions on the bench with a courtly,
``May I just ask . . . ?''
It was during a dinner at the French Embassy in Washington
when Stevens and his wife, Maryan, were seated with
Bernstein, who had just conducted the Orchestre National de
France at the Kennedy Center. Maryan wondered about the
emotions that accompany performing a masterpiece.
``It's like [making love] in a cathedral,'' Bernstein
replied, according to Stevens in the memoir. The justice
dutifully used the f-word to authenticate his reporting.
``The Making of a Justice'' is Stevens's third book since
leaving the court; the others chronicle the chief justices
with whom he served and how he would remake the Constitution.
He said he is unsure if there is a lesson in it for readers.
``I didn't have a specific mission in mind, I just started to
write,'' he said.
One lesson from childhood that informed his career, though,
involved his father. The Depression hit after the Stevens
Hotel opened, and the place faltered. The hotel borrowed
money from an insurance company controlled by Stevens's
grandfather, an act that a Cook County prosecutor viewed as
embezzlement. Ernest Stevens was found guilty, only to have
his conviction overturned by the Illinois Supreme Court,
which found not a ``scintilla'' of evidence of criminal
intent.
``Firsthand knowledge of the criminal justice's
fallibility'' made Stevens skeptical for the rest of his
career, he said. ``The system is not perfect--it's pretty
good, but it's not perfect''
Stevens was part of majorities that handed important
victories to gays, limited the death penalty and mostly held
the line on abortion rights.
On the latter, he said he is puzzled by ``more and more
state legislatures'' passing restrictive laws in hopes of
getting the Supreme Court to revisit the court's rulings.
``I thought that was an issue that had been resolved,'' he
said. ``I have no idea what the present court will do.''
In the book, he detailed his efforts to derail the Heller
majority. He adopted Justice Antonin Scalia's originalist
approach to show, in his opinion, that historical texts
supported the view that the Second Amendment was aimed at
preventing federal disarmament of state militias, rather than
forbidding efforts at gun control.
He wrote that he circulated his dissent five weeks before
Scalia's majority opinion, in hopes of persuading Justice
Anthony M. Kennedy and--somewhat surprisingly--Justice
Clarence Thomas.
``I think he's an intellectually honest person, and I just
thought there was a chance he might be persuaded'' on the
historical arguments, Stevens said of Thomas. ``I guess I was
kind of dreaming a little bit.''
But Stevens said the effort did succeed in getting Kennedy
to insist Scalia include limiting language that states and
cities have used to defend their gun-control measures.
In the book, Stevens refers to U.S. v. Nixon, in which the
court said the president must turn over White House tapes to
congressional investigators, as ``the high point for judicial
independence.''
He wrote the court's unanimous decision in Clinton v.
Jones, saying that a sitting president does not have immunity
from all civil lawsuits for actions when he was not in
office.
Both were unanimous and ``easy decisions,'' Stevens said,
but he declined to be drawn into the current battle between
congressional investigators and President Trump.
He is asked: Nothing to say about the president? ``Nothing
that you don't know already,'' he said.
____________________