Justice Stevens says he'll decide soon on retiring
Justice John Paul Stevens is reluctant to leave the job he loves, but realizes, at nearly 90, he has "to fish or cut bait."
The New York Times
WASHINGTON — "There are still pros and cons to be considered," Justice John Paul Stevens said in his Supreme Court chambers Friday afternoon, reflecting on his reluctance to leave a job he loves after almost 35 years. But his calculus seemed to be weighted toward departure, and he said his decision on the matter would come very soon.
"I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process," he said. "The president and the Senate need plenty of time to fill a vacancy."
Hints about Stevens' possible departure started in September, when he confirmed he had hired only a single law clerk, instead of the usual four, for the term that will start this fall. In occasional public statements since, Stevens, the leader of the court's liberal wing, said he had not made up his mind. But the Obama administration is bracing for a summertime confirmation battle, the second of the Obama presidency.
Stevens, who turns 90 this month, said he did not like to give interviews "because it saves an awful lot of time if you don't." But he was courtly in reviewing the trajectory of his tenure on the court and in summing up what he had learned about the role of the judge in American life.
Like last year's selection of Justice Sonia Sotomayor to replace the departing Justice David Souter, this change would be unlikely to remake the court's ideological balance. But the matter would in some ways have more resonance, if only because of Stevens' seniority and mastery of the court's machinery.
White House officials expect that any retirement announcement would come after the high court's last argument of its current term, April 28, an administration source said, on condition of anonymity. The administration is preparing to move quickly with a nomination, the source added.
Legal insiders have said the front-runners to replace Stevens would be U.S. Solicitor General Elena Kagan, 49; Judge Diane Wood, 59, of the U.S. Court of Appeals in Chicago; and Judge Merrick Garland, 57, of the U.S. Court of Appeals in Washington, D.C.
Appointed in 1975 by President Ford, Stevens was in those days considered an idiosyncratic moderate. These days, he is lionized by the left. But he rejected those labels Friday, saying his judicial philosophy was a conservative one.
"What really for me marks a conservative judge is one who doesn't decide more than he has to in order to do his own job," he said. "Our job is to decide cases and resolve controversies. It's not to write broad rules that may answer society's questions at large."
He is known for his fast and prolific writing, and for relying less on his law clerks than do some other justices.
"I write the first draft," he said. "One of the tests I had for myself as to when I would retire was that if I ever got to the point that I stopped writing the first draft, that would be a sign that I was no longer up to the job the way I think it should be done."
That day, he said, has not come. "Everything that's got my name on it, I wrote the first draft," Stevens said.
But he acknowledged he had a bad morning in January when he dissented from the bench in Citizens United, the blockbuster decision that said corporations may spend freely to support political candidates. He seemed weary and tripped over ordinary words.
"I did stumble in my oral statement," he said. "I had been up early that morning writing that statement out, and I had played tennis that morning. Maybe I was tired, and of course I felt strongly about it, but that has never affected my ability to articulate orally what I wanted to say before. It was a novel experience."
Should Stevens step down, the court will lose its last member who served in World War II and who is steeped in the values of that era.
"It really was a unique period of time, in the sense that the total country, with very few exceptions, was really united," Stevens said. "We were all on the same team, wanting the same result. You don't like to think of war as having anything good about it, but it is something that was a positive experience."
He was unapologetic in saying the justices' backgrounds necessarily shaped their approaches to the law.
He said his military service, as a Navy cryptographer, informed his dissent in Texas v. Johnson, a 1989 decision that said the First Amendment protects flag burning. "I know it's not the popular position, but I'm still totally convinced I was right," he said. "I still think I was right, but I wouldn't amend the Constitution or anything like that to straighten it out."
His views have remained stable, he said, while the court has drifted to the right over time. "To the extent I look back at earlier situations, I really don't think I've changed all that much."
On capital punishment, however, he said his views had shifted.
"I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze," he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Stevens voted with the majority, he wrote that he had come to the conclusion the death penalty violates the Eighth Amendment. He went on to say his conclusion did not justify "a refusal to respect precedents that remain a part of our law."
He explained Friday why he did not follow the approach of justices William Brennan and Thurgood Marshall, who adopted a practice of dissenting in every death-penalty case.
"I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You're still a member of the team, and the team has to confront the problem."
But that did not mean Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court's capital jurisprudence.
"There are a number of death cases that troubled me," he said. The Baze opinion "was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn't expect and is not correct."
When the talk turned to balancing the pros and cons of moving on, Stevens said the fact he was still hard at work spoke volumes.
"It's a wonderful job," he said. "That's perhaps the best evidence of it. I wouldn't have hung around so long if I didn't like the job and if I didn't think I was able to continue to do it."
On the con side, he said he was starting to feel his age. "I have to notice that I get arthritis in my left knee now and then," he said. "That wasn't bothering me before. I'm conscious of changes."
Those changes have shown up on the tennis court, he said. "The game isn't quite as good as it used to be, I have to confess," he said.
Material from Bloomberg News and The Seattle Times archive
is included in this report.
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