Even when a liberal justice retires, National Public Radio is still athletically suggesting he's not a liberal. The exit interview is as biased as the confirmation process. A first-Monday-in-October story on Morning Edition by legal reporter Nina Totenberg carried the online headline "Justice Stevens: An Open Mind on a Changed Court." Totenberg and the liberal justice insisted the incoming "hardline conservatives" merely made him look like a liberal:
TOTENBERG: Appointed by President Ford, Stevens was labeled a moderate conservative in his first decade. But with the court turning increasingly conservative over the years, by the time he retired, he was seen as the court's most liberal member. So, did he change - or the court?
Mr. STEVENS: Well, I think, primarily, the court has changed. There's some issues that I've learned more about over the years, and my views have certainly changed on some. But for the most part, I think that the change is a difference in the personnel of the court.
Totenberg cited the death penalty as an example. Stevens voted in support of it, and then became horrified as conservatives made it easier for prosecutors. "In short, as moderate conservatives retired and were replaced by more hard-line conservative justices, the court changed the rules."
Even as Stevens was seen by liberals as a solid leader of their bloc (even if they rarely admit it in the media), Totenberg played up how Stevens was open-minded:
TOTENBERG: Justice Stevens' practice was to write his own first drafts of opinions -- unlike many of his colleagues, who delegate that task to law clerks. But Stevens says that for him, writing it out was the best way to be sure of his position.
STEVENS: If you write it out, your reasoning will either make sense or it won't. And if it doesn't, you change your vote or you change your whole approach.
TOTENBERG: So, then you give it to your law clerks.
STEVENS: Correct.
TOTENBERG: So, what do you tell them is their job?
STEVENS: Well, their job is to prevent me from looking like an idiot.
TOTENBERG: The law clerks check facts and sometimes make only minor changes; but on other occasions, says the justice, they rewrite his draft entirely - a rewrite that he sometimes embraces in whole or part and sometimes rejects - in the nicest way, of course.
The important thing, though, says Stevens, is that in examining a question he often changes his mind. What at first blush may look like a simple case with an easy answer, turns out to be something quite different - a point that he observes seems to be lost at Senate confirmation hearings.
Totenberg's on-air story didn't match her online summary, where she let Stevens lay into conservative Justice Antonin Scalia, which makes it a little harder to push that "moderate conservative" jazz:
In 2008, when the court, including Stevens, declared that detainees at Guantanamo have a constitutional right to judicial review of their detentions, Justice Antonin Scalia, in dissent, said the majority opinion "will almost certainly cause more Americans to be killed."
With a tiny twinkle in his eye, Stevens says that Scalia "has written a number of opinions in which he has made very seriously dire predictions about what would happen, and I think by and large those things did not happen."
