Stevens. My name is ben feuer. Im 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 tonights program, the ninth judicial Historical Society and the American Constitution Society bay area chapter. Id like to welcome cspan which is brother aadcasting the discu tonight. In ten years or so that ive been putting on programs like this, this is the first time cspan has come. So weve made it. But truthfully, i think cspan 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 dont already. Before we begin, i would like to ask everyone to put their phones on vibrate. The next program that were 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. Were 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 theyre discussing, write them down so you dont forget them. Now i will introduce tonights 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 StatesSupreme Court and twice received the attorney generals award for Exceptional Service which is the highest award for employee performance. Shes a graduate of Harvard College where she was editor of 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. Hes one of the leading authorities on Supreme Court practice and hes 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 plaintiffs counsel against hodges on samesex marriage rights. He clerked for the late Steven Reinhardt on the Circuit Court of appeals and for Justice Stevens. Kathleen harhnett is in private practice where she represents plaintiffs and defendants. She served as assistant attorney general in the Civil Division of the u. S. Department of justice. Shes 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 hes 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. Lets get the ball rolling with Justice Kruger who is going to 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 justices remarkable service, his 35 years on the u. S. Supreme court and the impact that his work had on the substance of the courts Juris Prudence, on his judicial philosophy. Im 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 daytoday habits of judging. Its one of the great values of a clerkship that you go through 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 dont, 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 im 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 onefourth of all of the pa tigtig petitions for review. I knew that we would be going our own way frequently. I didnt 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 wasnt because he was so enamored of his own voice, it wasnt because he didnt 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 didnt, wasnt 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 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 wasnt 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 didnt have the first clue who he had voted for in any of the last several elections. It was a point of pride for him, 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. Were 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 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. Its 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. Theres 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 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 wasnt 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 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 twopage 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 laws 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 didnt happen very often. 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 ill 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 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 wouldnt 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 youre doing the right thing is i think one of the most important lessons that 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 justices 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 im projecting, but i think we were all pretty hungry for the answer to this question. I dont know exactly what i was expecting. Some set of prescriptions would 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 ive thought about that often in part because Justice Stevens wasnt the kind of person who dispensed advice readily. I think he thought it was presumptuous to tell people what they should or shouldnt 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. 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 its a neat opportunity to spend time reflecting on the justice in a way like this. Thanks. Im 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. Its a case that probably most lay people and many, many lawyers wouldnt even know by 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 justices 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 opinions or build a coalition. I want to talk a little bit about that too and i think its 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 theyre 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 our body language and said, its 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 defendants right not to be punished anymore severely than the jurys verdict allows. And this doctrine in a sense is a great way to talk about Justice Stevens 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 defendants punishment or at least require a mandatory minimum punishment, Something Like using a gun was found, or harming a victim in a particular way. 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 eightjustice decision saying this did not violate the defendants 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 defendants 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 arizonas Death Penalty law. And he wrote, its not im going to paraphrase. But 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 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 basic kind of sit