Served on the Supreme Court for 35 years, hear a panel of judges and attorneys, all former Supreme Court law clerks talk about his legacy. The Bar Association of San Francisco hosted the event. High everyone, good evening, thank you so much for coming to a nice program the impact of Justice John Paul stevens. I am an appellate lawyer here in thefrancisco, i am also chairman of the appellate section of the Bar Association of San Francisco which organized this event. I would like to extend a warm welcome to members of a few groups who are cosponsoring tonights program, the ninth judicial the federal Bar Association, Northern District of california chapter and the American Constitution Society bay area chapter. I would also like to welcome cspan which is broadcasting the discussion tonight. I find that exciting, because in 10 years or so but i have been putting on programs like this, this is the first time cspan has come, so i have made it. It is some of the most awful programming when congress is out of session so i recommend you check it out if you have not already. Before we can begin i would like to ask everyone to put their phones on vibrate. The next program we are putting on on january 28 is on settling cases in the ninth circuit. If that interests you, be sure to sign up. We are going to save time at the end of the program for questions. If any questions occur to you well our panelists are discussing, write them down so you do not forget them. Will introduce tonights panelists. To my left is leondra kruger, associate justice of the california Supreme Court since 2014. Prior to her judicial tenure, she served in the offices of Legal Counsel in the u. S. Department of justice and before that, she was the acting solicitor acting deputy solicitor for president obama. Argued 12t time she cases in the united state Supreme Court and see also twice received the attorney generals award for Exceptional Service which is the highest award for employee performance. Graduate of Harvard College and yell law. Sheik lurched for judge cable for the d. C. Circuit judge then to Justice Stevens. You are left is jeff fisher, a professor of law and codirector of the Supreme Court litigation clinic at hanford law. Leadingone of the authorities on Supreme Court practice and he has argued over three dozen cases in that court. He was the winning advocate in crawford v. Washington. Involving the hearsay exception in criminal prosecutions. In riley against california on smartphone Privacy Protection rights. And he was one of the plaintiffs counsel in obergefell versus hudson. Jeff is a graduate of duke and michigan law and he clerked for the late Stephen Reinhardt on the court of appeals and for Justice Stevens. To his left is kathleen hartman. A partner in law 4 she has a private practice representing clayton and that plaintiffs and defendants and highstakes litigation. During the Obama Administration and theas Deputy Department of justice. She is a graduate of Harvard College and law school and andked for Merrick Garland as you may have guessed also for Justice Stevens. Finally on the far left of the panel which is not a phrase he will hear very often is daniel breasts brass. Who is nominated and confirmed to the u. S. Court of appeals for the ninth circuit, finally getting through the hazing. He was a partner at he attended law school himself. After law school he worked for jay Harvey Wilkinson on the Fourth Circuit court of appeals and in the late Justice Antonin Scalia on the u. S. Supreme court. Lets get the ball rolling with Justice Kruger who will discuss some of Justice Stevens approaches to judging. Jus. Kruger thank you, ben, and 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, his remarkable service, has 35 years on the u. S. Supreme court and the impact that his work had on the substance of the courts jurisprudence, on judicial philosophy. I am instead going to focus more on how i best knew the justice inch was as his law clerk the 20032004 term. And what i observe from watching him about not the substance of his approach to deciding cases, but the day to day judging. It is one of the great values of a clerkship. Of go through three years law school, you spend all your time reading Supreme Court opinions, deciding what arguments you find persuasive and what you dont. Unless you happen to know a Supreme Court justice in real life, 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 . Looking back on it now that i may judge myself, i have feel fortunate to have learned to those things from Justice Stevens. I knew before i started the clerkship that my job was going that offferent from some of my colleagues. I knew i would be writing separate opinions. Justice stevens was even at that time by for the leader in number of separate opinions written. I knew that unlike some of my colleagues down the hall, i would be reading fully one fourth of all of the petitions for review that came into the court because Justice Stevens did not participate in this pool. I knew that we would be going our own way frequently. I did not know exactly the reason why until i started the clerkship did i learned over time listening to the way he talked about cases and talked about each of these things that it was not because he was so enamored of his own voice, it was not because he did not 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 judgment about what the law commanded. Whether others agreed with him and whether they did not was not his eye mary concern and he knew that his job was to do not what the crowd wanted him to do whether the crowd to be the majority of his colleagues, rented whether the crowd be the crowds of politically powerful people in the system, whether it be the wishes of the public. He knew his job was to do what he felt was right under the law. Not only that but to be transparent and honest about his best understanding of what the law commanded. He was, i think, sort of famously resistant to labels like liberal or conservative. It was not because he misunderstood what people meant when they used them, but he found them misleading and partnerships. In part because he understood he understood what his job was was fundamentally different from politics. It was a running joke around his clerks that we had no idea what his politics were even though he had been a lifelong republican and he was appointed by a republican president. We didnt have the first clue of who had voted for in the past several elections. It was a point of pride he told us that when he was born best sworn in to the Supreme Court he was sworn in at the spring court and not the white house. That was in part because it was important the symbolism was important to him to demonstrate that once he took the oath of office, he was not beholden to the president who appointed him or to any particular political force, that he was there to serve people of all parties and to do equal justice under the law. We were actually surprised to discover that he had accepted an invitation to attend a stated dinner at the white house given his general antipathy towards anything political. We were hoping he would come back with juicy insights into his political leanings. It was a time people talked about politics lost. A lot. It was not long after bush v. Gore and the start of the iraq war. We were sorely disappointed. When he came in the next day, the most he told us was the president is very attractive. That was the single most political commentary we got from him the entire year. It is hard to talk about Justice Stevens without mentioning his famous humility. Which sounds like a patronizing word to use to describe a Supreme Court justice, but there is no other way to describe it for somebody who is as brilliant as he was who was as 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 lowly 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 much as oral arguments where of hangingmous habit back until the latter half of the advocates argument been and then waiting for a gap in the barrage of questioning and preface by saying counsel, may i ask just one question . As someone who had seen this happen dozens of times, i knew this is what he did, i knew that it was coming, and all the same to be sort of facing this barrage of questions and have this gentle voice asked for permission is a little bit disconcerting. The answer is of course, youre a Supreme Court justice, you can ask whatever question you want. He was not actually asking permission when he prefaced his questions. It was his way of signaling respect for the advocate as a partner in the endeavor of finding the answers to the difficult answers that became before the court. That sense of humility and modesty and treating others as partners in this endeavor was something that pervaded his approach to working on cases all the way through. Forhe time that i clerked him, Justice Stevens had already been a member of the u. S. Supreme court for almost 30 years which was longer than i had been alive, so he knew a thing or two about the law. We used to joke among ourselves whenever he picked up a new case, about half the time you would be reading the relevant precedents and discover the justice had answered the precise question presented in the case 20 years earlier in a two page separate opinion written on a only semirelated subject. Even though Justice Stevens had been around a long time and seen a lot of the laws developments, he had been a central player and a lot of the relevant development, he always remained open to rethinking his views. He did the work and read the brief carefully, read the cases again. He was open to changing his mind. It did not happen very often, nine times out of 10 we would talk about the case, he would look at the separate opinion he had written 20 years earlier and say i think we were dead right. Dead right was a big phrase for him. He was willing to do the work and had the humility to consider and reconsider his views to make sure he was getting the law as right as it was possible to get it. The last thing i will mention is his approach to writing opinions which is emblematic of the diligence and humility with which he approached the work. Justice stevens unlike many of his colleagues wrote the first draft of each opinion. It is a habit he acquired as a in clerk to Wiley Rutledge the 1940s and the reason he did hewas not so much because was especially concerned about the particular way that words or phrases appeared in his ultimate opinion, although he was concerned about that also, but it was a performed disciplining function for him, his way of ensuring that the vote he had cast 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 sometimes he would discover in writing out that first draft that the opinion would not write and when he discovered that, he did not hesitate to change his mind to let his colleagues know he would not be writing the majority opinion after all. It was that openness and the diligence that it takes to reflect and drill down as deeply as necessary in order to ensure that you are doing the right of the mosthink one important lessons that i has a law clerk learned from Justice Stevens i will finish 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, two years before his passing, his former law clerks gathered in florida near his home to celebrate with him his 99th birthday and the release of his memoir. We had the opportunity at a dinner with the justice to ask him questions including questions reflecting on his life and his legacy and one of the questions was, you have 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 am projecting, but i think we were all hungry for the answer. I do not know exactly what i was expecting, but some kind of a prescription would have been nice like eat a grapefruit a day bridge, or walk 10,000 steps each day. His answer was nothing so prescriptive, it was not fit his fitness oriented. His answer was just always work hard and do your best. I thought about that often because in part Justice Stevens wasnt the kind of person who dispensed advice readily. I think he thought it was a little bit presumptuous to tell other people what they should or should not be doing, but it is as good a summary i think of his record on the Supreme Court as any other i can think of. , he worked asars hard as he could in the service of the public to render impartial and fair justice and he always did his best. Only be our hope that we are as successful as he was in that endeavor. Ben thank you, Justice Kruger. Jeff fisher . Will you please tell us a little about Justice Stevens incredible law in criminal law . Prof. Fisher i would be glad to. Thank you. Thanks for having this event. Thanks to the Bar Association for hosting it. Just hearing Justice Krugers remarks starts a series of memories floating. Flowing. It is a neat opportunity to spend time reflecting on the justice in a way like this, so thank you. I am going to try to pick up on a couple of the trends Justice Kruger just talked about in terms of justice is a way of deciding cases and run them through what he called in his his mosterhaps significant majority opinion he ever authored on the Supreme Court. It is a case called up randy versus new jersey and it is a case that probably most laypeople and indeed most lawyers would not even know by name. I want to talk about that. Himself singlece that out. I also want to try to weave together a bit of a story about picking up on Justice Krugers theme about his interaction with the work and his colleagues. I wholeheartedly agree that one of the defining features of justice the evens 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 they were not otherwise given voice on the court. Also byhe same time, the time i clerked for the late justice in the late 90s, he was the lead associate justice on the court, the one with the most seeing seniority. We found ourselves in a position to sign opinions or perhaps build a coalition. I want to talk about that. I think it is wonderful to have judge breasts about theeople know really special relationship Justice Scalia and Justice Ginsburg had on a personal level and on the court, but Justice Stevens and Justice Scalia also had a special relationship in many ways. I remember one day when i was clerking and the justice 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 are going to be assigned and he described a case where he was going to write the majority opinion. Then he told us at he would say, he said nino is going to do the dissent. I remember the clerks, we sat back knowing what a fierce pen Justice Scalia would have in dissent. I think Justice Stevens saw that body language from us and said it is ok, i can take his heat. [laughter] whether they were agreeing or disagreeing, they had a neat relationship with each other. The apprendi doctrine i want to talk about in criminal law deals with the defendants right not to be punished any more severely than the jurys verdict allows. Sense is ane in a great way to talk about Justice Stephen stevens independence to start with. After he joined the court, many state legislatures and ultimately congress started to pass a new sentencing law which took ordinary crimes that would increase a defendants punishment or