Good evening and thank you for coming to tonights program. Im an appellate lawyer here in San Francisco and also the chairman of the appellate section of the Bar Association of San Francisco which organized this event. Id like to extend a warm welcome to members of a few groups cosponseterring tonights program. The historical society, the Northern District california chapter and bay area chapter. Id also like to welcome cspan which is broadcasting it discussion tonight. I find that actually asserting this is the first time cspan has come, so weve made it. Truthfully i do think cspan has some of the most insightful and thought provoking delve. So i recommend you check it out if you dont already. Before we begin id like to ask everyone to phototheir phone on vibrupt. Be sure to signup. Were also going to save some time at the end of the program toomt for question. So if any questions akoor to you while our pnlalists are zgs theyre theyre discussing please write them down so you wont forget. And before that she was the acting solicitor acting deputy solicitorgeneral under president obama. During that time she argued 12 cases in the United StatesSupreme Court, and she also twice received the attorney generals reward for exceptionling service which is the departmentest highest award. She clerked for the judgeitateal on the u. S. Court of appeals for the d. C. Circuit and then just stevens. To her left is jeff fisher. Hes one of the nations leading authorities on Supreme Court practice, and hes argued over three dozen cases in that court. In blakely in washington against criminal sentencing guidelines. Jeff a graduate of duke and michigan law and clerked on the 9th Circuit Court of appeals. To jeffs left is cath lien where she has a private practice recognizing ploif and defends in high stakes civil litigation. She serve said as Deputy Assistant attorney general. Shes a graduate of Harvard College and law click and clerked for the infamous mayor garland and also for Justice Stevens. Finally on the far left of this panel which is probably not afraid as hes going to hear very often is daniel brass it was nominated copfirmed just last year. Hes about six months in, finally gelling through the heap. So lets get the ball rolling tonight with Justice Kruger whos going to discuss some of Justice Stevens approaches to judging. Thank you for the opportunity to participate in this wonderful event remembering and celebrating the legacy of Justice Stevens. I think others tonight will address his remarkable service, his 35 years on the u. S. Supreme court and the impact the court had on the substance of his perusance in philosophy. In law clerk in the 2003 to 2004 term. And when i observed about watching him is not from the substance about approaching to decide cases but the sort of day to day habits of jumping. Its one of the values that a clerkship that you go through three years of high school and spent all your time picking them aparts, finding smut arguments you find persuasive. Who do they lirsen to, how do they talk about what they do . I feel so fortunate to have learned the mistake from Justice Stevens. I knew before i started the clerkship that my job was going to be different. I know i was going to be writing a lot of september in opinions. By far the leader in the number of separate opinions written. I knew i would be reading fully one fourth of all the paw tigdss for review that came into the court because just stevens unlike his colleagues didnt participate in the krert pool. I knew wed be going our own way for the first time. The way he talked about each of these things, it wasnt so because he was enamored by his own voice, because he didnt go howl to get alone with others but because it was important for him at a very fundamental level to decide each case about what his best budget demanded. Whether agreed with him or didnt wasnt a primary concern. Whether the crowd be a majority of his colleagues. Whether it may the desires of politically powerful people in our system. Whether that crowd be the wishes of the public, but he knew his job was to do what he felt was right around the law. And not only that but to be transparency and honest about his bess understanding what the law famously. He was resistant to labels. It wasnt because he misunderstood what people wernt when they use them, but he found them misleading and in part permissions because i think understood it was actually sort of his running joke among his law chirks we really nowhere idea though we didnt have the first clue who he had voted for in any of the last several elections. It was a point of pride he told us when he was sworn into the Supreme Court he was sworn in at the white house it is not and of his colleagues had done. And that was in part because the symbolism is mornt to demonstrate once he took the oath of office he was not beholden to the president who appointed him. We were actually surprised that year to discover he had saeped an invitation tufben to trit. And we were sort of hoping youd come back to work the next day with juicy insights into his political leanings. It was a time when people talked about politics a lot. It was not very long after the start of the iraq war. But if were hoping for something juicy we were sorely disappointed. Because when he came in the next day the most he toiled us was the prest is a most exactch. Its hard to talk without sounding about humidity. But theres really no other way to describe it. For somebody who was as brilliant as he was, who was as experienced as he was, who had a position of such incredible spubl public trust. He drew his law circle. At oral argument he had a famous habit of hanging back and waiting for a little barrage in the gap of questioning. We always preface these to be council may i ask for permission . As someone whos seen this dozens of time i knew this with is what you did and all of a sudden facing this barrage of question and have this gentle voice peak in is a little disconcerting. Of course,your a 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 pervaded his approach to working up cases all the way through. At the time i clerked for him Justice Stevens had already been a member of the u. S. Supreme court which was longer than i had min apave. So and we always joked to ourselves half the time you would be reading the rev lnt studies and Justice Stevens would answer the precise question presented in the page. Even though Justice Stevens had been around a long time, he had seen a lot of the laws development, he had been a central player in a lot of the relati relative he always remained open to changing his views. 9 times out of 10 wed look back at the case and look at that sekt opinion 20 years aearlier and say i think were dead right. But he had the humility do that work and consider and reconsider his views to make sure he was getting his rights to getting it. It was a habit 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 way that words or phrases apers in his tilgsical opinions but the performed disciplining fukzing for him was toen sharing based an that hat m and he wrote down what he needed to and sometimes he would discover in writing out that first draft that the opinion just wouldnt write. And when he discovered that he did not hesitate to change his minds, let his colleagues know he would not be writing the majority opinion after all. And its that openness and the diligence that it takes to reflect and the to drill down as deeply as necessary in order to ensure that youre doing the right thing. I think one of the most important lessons that i as a law clerk learned from Justice Stevens i will end just 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 justices passing his relatives gathered and we had the opportunity at a dinwer the justice to ask him questions including questions reflecting on his life and lesacy. And one of the questions is you have lived with such a full and remarkable life, what advice with you with i we were all pretty hungry for the answer to this question. I dont know exact wle what i was expecting, but set ofscriptions would have been nice. Like eat a grapefruit a day or take up bridge, or walk 10,000 steps each day. His answer was just always work hard and do your best. I thought about that often in part because Justice Stevens wasnt the kind of person who dispensed advice very readily. I thought it was a little prushuchltion to sapeople what they should and shouldnt be doing. But it as good a summary i think as his record on themotor thap any 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 diz hid best. And it can be rest of our hope he will be as fell as he was in that endeavor. Will you please tell us about Justice Stevens and criminal law . Id be happy to, and thanks for that thig esvent. Thank tuesday the Barr Association to be part of it. Just hearing Justice Krugers remarks already starts a number of feeling flowing, and its an opportunity to be able to be geksing on the justice in a way like this. Im going to try to pick up on a couple of threats Justice Kruger just talked about in terms of the just way of deciding cissed. Cutes troand perhaps his most significant majority opinion he ever authored on the Supreme Court. Its a case that probably most lay people, indeed many, many lawyers wouldnt even know by name. So i want to talk a bit about that since the justice himself lingled that out as an important picture of his, juris prudence. I want to weave together picking up on vus s work and his interaction with his colleagues. Because i wholeheartedly agree one of the defining features of Justice Stevens was his fierce independence not just as a judge in general but in terms of his own views and expressing them when he felt like otherwise not a view on the court. At the same time i clerk frd there the justice which was the late 90s he was the lead associate justice on the court, so he often found himself in position. And i think its wonderful to have judge press on the panel because a central character is stuls i think about the really special relationship just s scalia and ginsberg had on a personal level on the court. But Justice Stevens and scalia i also think had a personal relationship with each other in many ways. I remember one day when i was clerking and the dos sism from congress heres how we voted and ears how the opinions looked like theyre going be assigned. He told us as he said say, ninos going to do the dissent. And said inclerk says unly in the term and i think Justice Stevens saw that body language for us and said, its okay, i can tick this heat. So i think they had kind of a new relationship with each other. The document i want to talk about in criminal law deals with the defends right not to be punished anymore severely than the jurys verdict allows. And this krway to talk about Justice Stevens appendix to start with. After Justice Stevens is showing the courts intot 1980s many legislators and ultimately crossed started to pasds through the new sentencing law, which took ordinary crimes and pesified particularly particular factors that would increase a defends punishment or require at least a movement. And the way these laws were written typically left that to it the judge after a jury had found a verdict of guilty in the regular crime. This issue first came to the court 1986 in a case called mcmillenversies pennsylvania for using a gin in the commission of defense. And court wrote an 8 justice decision saying this did not voilt the defendants due process rights. And the lone decenter was Justice Stevens. And he wrote a dissent where he said if this is okay then legislators can simply have a broad crime like assault and then have people promised more severe if the judge finds not by beyond a reasonable doubt, but rather nus preponderance of the evidence someone was injured in a particular way or any other number of facts. That he what wig twist in not being punished anymore than he deserved, anymore than a jury thought he should be allowed. He wrote that lone dissent and then again found himself alone in 1909. And Justice Stevens wrote im going to paraparaphrase. He said its not too late in the day for us to recognize that the constitution has something to say about a fact that increases somebodys punishment. In that case pfs not just increasing punishment in terms of prison but actually allowing the spoocome and he wrote a solo dissent in 1990 on that issue but was unable to move his colleagues. Fast foreword from 1990 to 2,000. And it was another one of these basic situations here a commit ozwas committing a crime, a hate crime, was something it was disposed and defend five extra years. In that tenyear 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 a is sentence. That in nant several more cases after that to various sentencing countywide lines regimes a at the state level and really creating a raefblution in criminal sentencing practice in this country. At a time when we watch the ever changing membership of the court and we have so much conversation about whether one justice is replaced with another will that tilt the balance on an issue or have a court consider a precedent . It wasnt the changing membership in the court but Justice Stevens own persuasiveness inside the building. But also werent necessarily inclieped always to vote with him including Justice Thomas who joined in am majority in a 45 decision. And so i think what does that tell us about Justice Stevens legacy in criminal law in this area he thought was so important . I dont want to suggest that Justice Stevens was absolutely lock step with his colleagues when it came to how they thought about this. In particular i think he did think about it differently than Justice Scalia and thomas even they they reached the same bottom line. And the stigma and mungsment at stake for the individual resonate just as Justice Scalia and thomas in this area have taken their powers more from the administration of powers perspective in the sense thaur ks process but i think whats extraordinary you see Justice Stevens finding a way to bring different perspective together on the court to reach a majority. And not by vote trading or not by haggling but by ran. I think it also has had ripple effects not just in criminal sentencing but actually in several other areas of the Supreme Courts docket. And even today so look back to the last example. There was a case last term, for example, where Justice Gorsuch and Justice Thomas joined three democratic appointees so that lives on through other people. But also there are other areas of law like the right to confrontation, like the requirement that criminal laws be written with specific sp specificity so the populous can understand what fair means. And in all these areas in a sense the majority that Justice Stevens forged from different perspectives on the criminal law lives on today in all these other areas and i think in ways his legacy i think he was proud even when he stepped off the bench. Fascinating. Okay, cath lien hartnick, can you tell us about your views about Justice Stevens . Thank you and im happy to be here and enjoy my friends and colleagues stories and recollections. My stories actually dove tail because i think the honor of us clerking for him infused our life lessons. So i clerked for Justice Stevens in the october term of 2001. It was the year after bush v. Gore, so kind of a lowkey term from that perspective. And its hard to believe thats 20 years ago. And so i thought what i would try to do is just bring some thought kind of dove tailing from but in my mind i think he brought a practice of the law sensibility, a kind of a litigation and someone whos enjoying the art and practice of law to his work on a bench and kind of seeing it. Even though he had to use through the dockren and i think his practicalities and enjoyment of Legal Practice is something that struck me and something hopefully will continue to inspire people as they approach casesch vethone he was on the bench for so long and cared so deeply about aspects of the legal doctrine like other issues he was kind of a practical lawyer at heart. He basically took each case as new case before him, and he would have the thoughts how this could relate but i would have that remembrance of if he cracked open the briefs and it was time to start this cake case and lets take this on from front to back. I think when you get a new case file in your job theres