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GARY EICHTEN: Friday. If you like warm weather, this is right up your alley. Both Friday and Saturday, we can look for a sunny to partly sunny sky and a high temperature of 85 to 90 degrees. Now, Independence Day, 4th of July. There is now a 40% chance of rain. So let's keep our fingers crossed regarding the fireworks. Rain possible on 4th of July. By Monday, just a slight chance of rain.

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And good afternoon. This is Midday on Minnesota Public Radio News. I'm Gary Eichten. Coming up this next hour, Minnesota's senators quiz the nominee. Coming up, we'll listen in as Senators Klobuchar and Franken question Elena Kagan. We'll also remember a Minnesota judicial and Minnesota political giant. We'll get started right after the news.

LAKSHMI SINGH: From NPR news in Washington, I'm Lakshmi Singh. General David Petraeus is confirmed as the new commander of the Afghanistan war. The Senate vote today was unanimous. Petraeus replaces General Stanley McChrystal who recently resigned after he and aides were quoted in Rolling Stone magazine mocking some of President Obama's war advisors

Supreme Court nominee Elena Kagan says when she puts on her judge's robe, she will leave politics aside. NPR's Carrie Johnson reports on the third day of Kagan's confirmation hearings.

CARRIE JOHNSON: Elena Kagan says there's a huge difference between her jobs in the Clinton White House and her bid to serve on the Supreme Court. Kagan tells senators she's proud of her work as a domestic policy advisor, but that her view of judging means she sometimes could vote against things. She would support based on her personal views.

ELENA KAGAN: As a judge, you are on nobody's team. As a judge, you are an independent actor. And your job is simply to evaluate the law and evaluate the facts.

CARRIE JOHNSON: Kagan promises to take a narrow approach to judging. She's resisting efforts by senators to get her opinions on controversial court rulings in campaign finance, environmental and business cases. Kagan spent nine hours on Capitol Hill Tuesday. She'll stay on the hot seat at least through the rest of today. Carrie Johnson, NPR news, Washington.

LAKSHMI SINGH: It's coming down hard on parts of the Mexican border with Southern Texas. Rain and strong winds in South Padre Island, courtesy of Hurricane Alex. The storm is forecast to make landfall possibly as a stronger category 2 in northeastern Mexico late tonight or early tomorrow.

Alex, the first named storm of the Atlantic hurricane season remains far to the southwest of major US offshore facilities. But some energy companies have shut down oil and gas production in the Gulf and evacuated personnel. Rough sea conditions are also complicating oil spill containment and cleanup in the Gulf.

A big upset at Wimbledon as the number one men's number seed makes an early exit. Larry Miller has more from London.

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LARRY MILLER: Defending Wimbledon champion Roger Federer was knocked out of the quarterfinals by Tomas Berdych. Federer went down three sets to one, outplayed by the 6'5" Czech throughout much of the match.

Uncharacteristically, Federer was making one unforced error after another and couldn't handle Berdych's serves, often pushing 140 miles an hour. Berdych says nerves almost got to him in the final game of the match.

TOMAS BERDYCH: Well, I would say my career, I think it was so far the toughest game to serve and close up the match.

LARRY MILLER: Federer was looking for his seventh Wimbledon title. Instead, as the first time since 2002, he hasn't reached the finals. For NPR news, I'm Larry Miller in London.

LAKSHMI SINGH: Dow's up 6 points at 98.77. NASDAQ up 12 to 21.47. This is NPR news.

STEVEN JOHN: Support for news comes from the George Lucas Educational Foundation, creator of Edutopia, a source for what works in education. Learn more at edutopia.org.

From Minnesota Public Radio News, I'm Steven John. Emergency crews are on the scene of a train derailment in the western Twin Cities suburb of Wayzata. According to the Wayzata city manager, about 10 cars went off the tracks this morning. The 100 car train is owned by Burlington Northern Santa Fe. No injuries have been reported. The cause of the derailment has not been determined.

A nurses strike is looking increasingly likely after the nurses union rejected the latest contract offer from a group of Twin Cities hospitals. The hospitals offered to restore nurses full pension benefits and set up a working group to address some of their staffing concerns. But the union continues to demand firm nurse to patient ratios, something the hospitals say they won't accept. No new talks are scheduled before Tuesday's strike deadline.

Today is Bill Green's last day as superintendent of the Minneapolis school district. He's leaving to return to his teaching job at Augsburg College. Green first became interim superintendent in 2006 and was later named to the job permanently. He had previously been on the school board and is largely credited for bringing stability to a district that had been in turmoil. Green says it was a difficult time.

BILL GREEN: There was tension within the administration, between the administration and schools, between the district and parents, between the school community and the non-school community. And it was a very challenging time to be focused on kids.

STEVEN JOHN: Green says his accomplishments include helping pass a tax increase referendum in 2008 for the district. But he says he'd have liked to have made more progress in closing the achievement gap between white students and students of color. Bernardeia Johnson is taking over for Green. She had been his deputy superintendent before being named to the new job in January.

Mostly sunny and pleasant again today across the state. This is Minnesota Public Radio News.

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GARY EICHTEN: And good afternoon. Welcome back to Midday. On Minnesota Public Radio News, I'm Gary Eichten. Well, as we noted last hour, the confirmation hearings on Elena Kagan's nomination to the US Supreme Court are wrapping up. Some senators on the Judiciary Committee have a second round of questions for Kagan. And you can follow along at mprnewsq.org.

We'll also have a complete summary of today's activities at 9:00 tonight here on Minnesota Public Radio News. But as we say, for the most part, the Judiciary Committee is finishing its work and is expected to easily recommend Kagan's confirmation by the full Senate.

During this hour of midday, we have some highlights from this morning's session when both of Minnesota's US senators had a chance to question Elena Kagan. That's coming up first. Then later this hour, we'll remember a Minnesota judicial giant who passed away this week. But to begin some excerpts from this morning's confirmation session, when Minnesota senators Amy Klobuchar and Al Franken had a chance to question the nominee.

First up, US Senator Amy klobuchar, who began by asking Kagan about an issue that's come up before in the hearings, namely whether a judge should be compared to an umpire.

AMY KLOBUCHAR: I read a few weeks ago, this article that I thought was good in The Washington Post by Donald Ayer, who is the former Deputy Solicitor General in the Reagan administration. And he talks a lot about what he thinks these hearings should be about. But he also makes some references to the balls and strikes analogy.

And as you know, when Chief Justice Roberts was nominated to the Supreme Court and sat in the seat you're currently in, he famously told this committee that judges are like umpires. Umpires don't make the rules. They apply them. He said that it was his job to call balls and strikes. And I was wondering if you could just talk about that metaphor. Do you think the balls and strikes analogy is a useful one? And does it have its limits?

ELENA KAGAN: Senator Klobuchar, I think it's correct in several important respects. But like all metaphors, it does have its limits. So let me start with the ways in which I think it's an apt metaphor.

The first is the most obvious, which is that you expect that the judge, as you expect the umpire, not to have a team in the game. In other words, not to come on to the field rooting for one team or another. If the umpire comes on and says, you know, I want every call to go to the Phillies, that's a bad umpire. And is that your team?

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AMY KLOBUCHAR: Not exactly. The Twins. The Twins.

ELENA KAGAN: I was pointing to Senator Conklin, I'm sorry. And same for the judge. So to the extent that what the umpire suggests that there's got to be neutrality. That there's got to be fairness to both parties. Of course, that's right.

The second thing that I think is right about the metaphor, and I think that this is what the Chief Justice most had in mind if I remember his testimony correctly, is that judges should realize that they're not the most important people in our Democratic system of government. They have an important role. Of course they do.

We live in a constitutional democracy, not a pure democracy. And judges have an important role in policing the constitutional boundaries of our system and ensuring that governmental actors, other governmental actors, don't overstep their proper role.

But judges should recognize that that's a limited role, and that the policy makers of this country, and that the people who make the fundamental decisions for this country are the people and their elected representatives, whether in Congress or in the executive branch. And I think that that's right too as I've tried to say on many occasions throughout these hearings.

I suppose the way in which I think that the metaphor does have its limits, and I believe that this is in line with what Mr. Ayers was talking about, was that the metaphor might suggest to some people that law is a kind of robotic enterprise. That there's a kind of automatic quality to it. That it's easy.

That we just stand there and we go ball and strike and everything is clear cut and that there is no judgment in the process. And I do think that that's not right. And it's especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.

And as to that, I think that judges do in many of these cases have to exercise judgment. They're not easy calls. That doesn't mean that they're doing anything other than applying law. I said yesterday on a couple of different occasions, it's law all the way down.

You're looking at text. You're looking at structure. You're looking at history. You're looking at precedent. You're looking at law and only at law, not your political preferences, not your personal preferences.

But we do know that not every case is decided 9-0. And that's not because anybody is acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.

And so in that sense, law does require a kind of judgment, a kind of wisdom. And there are frequently clashes of constitutional values. Senator Whitehouse talked about one such clash.

But there are many of them. And judges have to listen to both sides and cast each argument in the best possible light. But sometimes, they're not going to agree.

GARY EICHTEN: Supreme Court nominee Elena Kagan answering a question this morning from Minnesota Senator Amy Klobuchar. Klobuchar went on to ask Kagan about her past experience, whether it has shaped who she would be, who Kagan would be on the bench. And Klobuchar asked Kagan how she would make sure the court's decisions are grounded in the real world.

AMY KLOBUCHAR: In a 1996 article on the First Amendment, you discussed a case actually from my state R.A.V. Versus City of St. Paul. And you've noted that Justice Stevens criticized part of the Supreme Court's approach in that case, characterizing it as, quote, "an adventure in a doctrinal wonderland." How, as Justice Stevens successor, would you work to make sure the Supreme Court's opinions are both well grounded and accessible to the general public?

ELENA KAGAN: Senator Klobuchar, I think I should say it's an important question. I'll just say, I think in the end, I disagreed with Justice Stevens more than I agreed with him in that opinion. But I do think it's sometimes a fair criticism, the criticism that Justice Stevens made.

And it suggests something about maybe some decisions, lack of connectedness to facts on the ground. And I would say two things about that. I mean, the first is that courts have to be really attentive to the facts of a case. That courts can't be spinning legal doctrine irrespective of the facts in a case that have been presented to them.

Because the whole idea of courts in our system is that the courts aren't deciding abstract legal questions. They're not just philosophizing about proper legal approaches. They're deciding actual cases and controversies. And what it means to decide an actual case or controversy is to think about the application of law to facts.

And what that requires is that you really understand the facts. That you delve through the record. That you get your absolute best sense of what the actual conditions and circumstances of the parties are. So that would be the first point I would make.

I guess, the second thing is actually that even going beyond that, that it's often an important part of principle judicial decision making to take into account the actual consequences of a legal rule. And this appears in a number of different areas. I'll give you one, which is procedural due process, the 14th Amendment.

We're more used to talking in these hearings about the substantive due process aspect of the 14th Amendment. But the procedural due process aspect is very important. It's the set of requirements that say when an individual comes and challenges the government, says the government has denied me some benefit that the government owes me.

The question is what procedures is that person entitled to to make that challenge? And that the test the court uses is a very practical one. It says, well, if we gave you more procedures, how much would that increase the accuracy of our determinations?

And also, if you were wrongly deprived of some benefit, how much would that hurt you? And also, what's the burden that these procedures are likely to impose on the government? What's the actual cost that the government is going to have to incur?

And it balances those things. And that's an example of how in some areas the court has and I think has appropriately looked to the real world, the practical effects of a particular legal rule.

AMY KLOBUCHAR: So you're not talking about driving a result. You're talking about how the results, knowing what the results could be, should be considered.

ELENA KAGAN: Yes. You're totally not talking about driving the results. This is anything but a results orientation in the way people think oh, I want this side rather than that side to win. That's inappropriate in all circumstance. But there are places in which the legal doctrine and even the constitutional doctrine does take into account practical effects.

I mean, just another quick example is Fourth Amendment search and seizure cases where the Constitution speaks of unreasonable searches and seizures. And one of the things that the court takes into account in deciding what's a reasonable search and seizure and what's an unreasonable search and seizure is some practical impacts on the people who are searched, but also very much on the police.

How can we create a set of-- how can we create a doctrine that the police will find to be workable so that they'll know when to search and when not to search, when they have to get a warrant and when they don't have to get a warrant.

GARY EICHTEN: Supreme Court nominee Elena Kagan answering questions from Minnesota Senator Amy Klobuchar this morning. The Senate Judiciary Committee is wrapping up its hearing on the nomination of Kagan to the US Supreme Court. The committee is taking a lunch break. But when it comes back, you can follow along on this afternoon's activities at mprnewsq.org.

Again, a complete summary of today's activities 9:00 tonight. Now, both of Minnesota's. Senators sit on the Judiciary Committee, giving Minnesota in a way some unusual influence on this nomination process. Last senator to question Kagan this morning was Democrat Al Franken. Franken began by asking nominee Kagan about whether she believes the court should provide a level playing field for all Americans.

He then went on to questions about a particular case, Citizens United versus the Federal Election Commission. Controversial case decided back in January that's been widely criticized by President Barack Obama and other Democrats. They say it's a sign of unwarranted activism by the Roberts Court. And it's a case that Kagan has been fielding questions on throughout the hearing.

AL FRANKEN: You've gotten a lot of questions about Citizens United. I'm going to try to bore down a little deeper on this. First, I want to make it totally clear that a full 80% of Americans who hear about this case just think it's a bad idea.

The first problem is the impact it's going to have on our communities and our ability to run those communities. Because the potential for corporate influence on our elections under Citizens United is going to dwarf what it is today and may very well totally drown out individual citizens.

Before Citizens United, if a corporation wanted to run an ad that said vote for Joe, it could only use money from its Political Action Committee or PAC. Those PACs relied on donations from employees and executives, individuals, and those corporations. In the 2008 cycle, all federal PACs combined spent a total of $1.2 billion.

Now, after Citizens United, if a corporation wants to run an ad that says vote for Joe, it can use all of its money-- its treasury funds, its revenues, all of its money. In the 2008 cycle, the combined gross revenue for Fortune 100 companies was $13.1 trillion. Now, obviously, you're not going to spend all that money. on ads or all of it on just any election.

They would spend a lot, but they can spend billions. They could have spent under this law billions when we tried-- when we passed the law that took the lead out of gasoline, when we passed the law, that required seatbelts. And they are going to spend it when we try to protect against oil drilling in deep water when we don't have safety precautions or Wall Street fraud.

They're going to spend their money against the consumer and environmental laws that protect our families and our homes. General Kagan, this is one of the last things that Justice Stevens said in his dissent. At bottom, the court's opinion is a rejection of the common sense of the American people who have recognized the need to prevent corporations from undermining self-government since the founding. What do you think that means, General Kagan?

ELENA KAGAN: Well, Senator Franken, when I argued the case, I thought that the strongest argument of the government was the very substantial record that Congress put together, which I think reflected the sense of the American people that these monies from these actors spent in this form could have substantial corrupting effect on the political process. And that's the argument that the government made to the court.

Now, as I've indicated before, I approached this case as an advocate, not as a judge, and that there are certainly strong arguments on the other side as well. And in particular, there is the fact that political speech is the highest form of speech under the First Amendment entitled to the greatest protection. And that the courts should be wary of Congress regulating in this area in such a way as to protect incumbents to help themselves. And I think that those are strong arguments.

The argument that the government made in defense of the statute as against that was really an argument about the strength of the governmental interest involved in this case in preventing corruption from this kind of expenditure of money.

AL FRANKEN: General Kagan, another problem with Citizens United was how it was decided. Because it was decided in a manner it was really unfair to the American people. Let me explain.

When you go to trial, you make arguments and you introduce evidence to back up those arguments. Now, you can't introduce evidence after trial. So if you appeal, you can't just come up with a new argument because the appeals court doesn't have any evidence to decide it on.

This is why there's an old rule that the Supreme Court shouldn't answer questions they aren't asked. Or as Justice Scalia said to you in your first oral argument on this, we are not a self-starting institution. We only disapprove of something when somebody asks us to. If the court expands the scope of the question before, it this is me, it won't have the evidence. It needs to decide that question.

But that's the opposite of what the court did in Citizens United. In Citizens United, the plaintiff argued and presented evidence on this question. Should a certain part of McCain-Feingold apply to certain kinds of nonprofits. And that's not the question that the Roberts Court answered.

This is how the Roberts Court answered. No, McCain-Feingold shouldn't apply to non-profits or for profits or unions, and neither should a different law that Congress passed 40 years ago. In fact, both of those laws are unconstitutional for everyone. Because the Roberts Court answered a question wasn't asked, it never got evidence on how McCain-Feingold was actually affecting most nonprofits or any for-profit corporation or union.

This is what you said in the case. In your argument, what the government or this is what you said actually here in the hearing. What the government tried to argue in Citizens United was that Congress had compiled a very extensive record about the effects of these expenditures by corporations and unions on the political process.

And what the Congress had found was that these corporations and unions had a kind of access to congressmen, had a kind of influence over congressmen that changed outcomes and that was a corrupting influence on Congress. That was a many, many thousand page record.

So this finding of fact was ignored because it had to be. As Justice Stevens said, the record is not simply incomplete or unsatisfactory. It is nonexistent. General Kagan, you were criticized at the beginning of this for being outcome or results oriented, especially in your bench memos to Justice Marshall.

How's this for guaranteeing an outcome? You wait until the case is out of the trial court. You wait until it is too late to submit evidence. You wait until the institution that wrote the law can no longer submit evidence.

You wait until the appeal has been argued in the Circuit Court. You wait until the oral argument before the Supreme-- you wait until the argument, oral argument before the Supreme court. And then you change the issue under consideration to get the outcome you want.

If that isn't outcome oriented, I don't know what is. I'd love to ask you if you agree, but. I don't want to force you to criticize your future colleagues. So instead, let me see if you agree with some general statements of law.

In general, do you agree with Justice Scalia that the Supreme Court is not a self-starting institution that should only disapprove of something when somebody asks it to?

ELENA KAGAN: That's certainly true. It's a basic postulate of the way we run our judicial system that the court doesn't issue advisory opinions, that the court doesn't issue opinions on anything except what's necessary to decide a concrete case or controversy before it.

AL FRANKEN: How about this? Here's something that Chief Justice Roberts said when he was a Circuit Court judge. He said, if it is not necessary to decide more, it is necessary not to decide more. You agree with that?

ELENA KAGAN: I do agree with that, Senator Franken. That, too, is a basic principle of our legal system. It's a requirement of or it's a foundation stone of judicial restraint.

AL FRANKEN: Well, I'm glad you agree with that. Do you agree with Chief Justice Roberts that courts should decide matters as narrowly as possible?

ELENA KAGAN: Yes, I do, Senator Franken. In part for the reasons I was discussing with Senator Whitehouse that this leads to a kind of restrained decision-making in which consensus can be most easily achieved and appropriate and restrained outcomes most easily reached.

AL FRANKEN: OK. I would be the last person to draw conclusions from your answers. But to be honest, in Citizens United, I don't think Justice Stevens or-- I'm sorry, Justice Scalia or Chief Justice Roberts adhere to their own principles. I think they were legislating from the bench.

GARY EICHTEN: Minnesota Senator Al Franken questioning US Supreme Court nominee Elena Kagan at the Senate Judiciary Committee hearings this morning. Confirmation hearings are wrapping up. Some senators have a second round of questions for Kagan. And you can follow along at mprnewsq.org.

Right now, by the way, the committee is taking a lunch break, but they'll be back half hour or so Follow along at mprnewsq.org. And also, we will have a complete summary of today's confirmation hearing activities at 9 o'clock tonight here on Minnesota Public Radio News.

For the rest of this hour, we're going to remember a Minnesotan who had a major impact on the nation's judicial system and a major impact on Minnesota politics for that matter, long time federal judge Gerald Heaney. Funeral services were held in Duluth yesterday for Judge Heaney who died last week at the age of 92.

Gerald Heaney spent nearly four decades on the Eighth Circuit US Court of Appeals where he developed a reputation as a champion of individual freedoms and the rights of the accused. Back in the 1980s, he authored a decision to desegregate the St. Louis schools. That decision was appealed to the US Supreme Court several different times, but the plan was never overturned.

Heaney was also a longtime DFL activist who worked side by side with DFL legends Hubert Humphrey, Orville Freeman, Eugene McCarthy, Walter Mondale. And Gerald Heaney was a war hero. Back in 2006, Minnesota Public Radio's Stephanie Hemphill talked to Judge Heaney about his illustrious career, part of our Voices of Minnesota series.

STEPHANIE HEMPHILL: Gerald Heaney was born in 1918 in Goodhue, Minnesota, in the southeastern corner of the state.

GERALD HEANEY: My dad and my uncle had a meat market in Goodhue. And then they also-- my dad was a cattle buyer and a wool buyer.

STEPHANIE HEMPHILL: Was your family big? Did you have lots of brothers and sisters?

GERALD HEANEY: I had two brothers and four sisters. And my mother died when my youngest sister was born. My father's sister came to live with us, my aunt Annie.

STEPHANIE HEMPHILL: And that was during the depression, so things were tough.

GERALD HEANEY: Yeah. We didn't have any money. But we always had enough to eat, a warm place to live, and had good public schools in Goodhue. And so we weren't hurting. We just didn't have any money. And I was a saving little kid there was in the world. And I had $246 in the bank when Roosevelt declared a bank holiday.

And after the banks reopened, I got $0.10 on the dollar. My uncle and my father had all their money in the bank from the business, and they only got $0.10 back on their dollar. So we had kind of hard times.

STEPHANIE HEMPHILL: In spite of the depression and his mother's death, Heaney says he had a happy childhood and he always knew he wanted to be a lawyer. He had an uncle who was a lawyer. And as a kid, he made friends with another attorney in town, Frank O'Gorman.

O'Gorman provided Heaney with his first partisan political experience. It was 1928 and New York progressive Al Smith was running for president against Herbert Hoover.

GERALD HEANEY: And then Saturdays, he'd take me in his car. And we'd go out and nail up Al Smith's signs on the telephone pole, on the rural roads in Goodhue County. Then the next Saturday, we'd have to go back and do the same thing because they'd all be torn down.

[LAUGHS]

STEPHANIE HEMPHILL: How old were you then?

GERALD HEANEY: 10 years old.

[LAUGHS]

STEPHANIE HEMPHILL: You've been in politics all your life.

GERALD HEANEY: Been in politics, yeah, all my life.

STEPHANIE HEMPHILL: Was your father a liberal guy?

GERALD HEANEY: He wasn't in politics at all. And I wouldn't say that he was a liberal person. But he was a compassionate person. Those were the days when unemployed men were riding the rails and they would come to Goodhue. And I can remember the times when we'd be having lunch and really a knock at the back door.

And if my father was home, he'd insist that they come in and have lunch with us at the table. If my nanny was home alone, she would give them the food, but she'd have them eat out in the back, in the back hallway.

But he was always very compassionate and always got along well with everybody in the community, whether they were Catholic as we were or Lutherans, which was the predominant group.

STEPHANIE HEMPHILL: So is that what Al Smith represented to you is someone who would be compassionate and help take care of people?

GERALD HEANEY: Well, yeah, but at that time, it was strictly religious. I guess, if you were Catholic, you were supposed to be for Al Smith. If you weren't Catholic, you were supposed to be against him. And so I remember going to school. And at recess, I would wear an Al Smith button, and the other kids would wear a Hoover button.

And they had a little ditty that went, "Sour cats and rotten rats are good enough for Democrats." And then we'd get into-- then we'd get into a fight out in the schoolyard. And the teacher would have to come to break us up. And that happened, that happened time after time.

STEPHANIE HEMPHILL: Young Gerry Heaney got a $250 scholarship for college from the Knights of Columbus. He worked to pay the rest of his expenses and graduated without going into debt. He went on to law school at the University of Minnesota. That's where he met Orville Freeman, and the two quickly became close friends.

Freeman later became governor of Minnesota and US Secretary of Agriculture under presidents Kennedy and Johnson. When the Japanese attacked Pearl Harbor in December of 1941, Heaney and Freeman went together to volunteer for the Marines. Freeman got in, but Heaney was colorblind and the Marines wouldn't take him. So he finished up the last year of law school.

Then he tried it again. He enlisted in the Army. The Army sent him to officer's training school and promoted him to lieutenant. He served in the 2nd Ranger Battalion, a commando unit. His group joined 3 million troops for the invasion of Europe at Normandy. Omaha Beach was the bloodiest place on the coast that day. Heaney calls it a very difficult day.

GERALD HEANEY: We lost about 60% of the people in our battalion, either wounded or killed on that day. And I was one of the, I was one of the very, very lucky ones and one of the very fortunate ones. And I guess that everything that could go wrong went wrong.

The group that was supposed to land before us veered off to the left. And so we landed. We were the first wave on Omaha Beach on that sector. Then they had spent millions and millions of dollars in building barges. And they had thousands of mortars on those barges.

And the theory was that when we were 1,000 yards offshore, that those mortars were to be shot into enfilade the entire beach. But they all landed in the water in front of us. And then the Air Force was supposed to bomb the beach, but they dropped the bombs a mile inland. And so it went. So that's why it turned out to be a tough deal.

STEPHANIE HEMPHILL: I wonder if it's just impossible to describe to someone who wasn't in a place like that or has never been experienced a place like that.

GERALD HEANEY: As we approach our-- the artillery shells and the mortar shells were dropping around us. And we were supposed to be brought in to shore. But instead, the coxswain of the boat we were on, which was an English landing craft, we had landed on an English ship. And he says, this is as far as I go, lads.

And so down goes the ramp in about water up to our shoulders. And my best friend in the whole battalion was killed as he went off the ramp. So the rest of us went over the side. And I only weighed 140 pounds and the pack weighed 60 pounds. And you can imagine what a weight, it was waterlogged.

So the first thing I had to do was to get rid of that pack. So I went ashore. All I had was a bandolier of ammunition and my rifle. But I made it.

STEPHANIE HEMPHILL: Heaney's unit served under General Patton in the push-through Belgium and into Germany. This was the desperate, frozen winter of the Battle of the Bulge. Heaney was further north in the fierce fighting in the Húrtgen forest on the border between Belgium and Germany. He and his comrades made it to the Rhine River in time to cross into Germany on the bridge at Remagen, which survived frantic German attempts to destroy it.

Heaney had avoided wounds, but he got very sick. He came down with hepatitis. He spent more than a month in the hospital. When he learned about his next assignment, he outfoxed the Army.

GERALD HEANEY: The head doctor came in and said, well, we're releasing you tomorrow, lieutenant. And I said, well, where am I-- what are my orders say that I'm to go? And he says, you're to go back to the United States. And I said, well, what am I going-- what am I going to do there? He says, you're going to be a training officer for a new ranger battalion and I could get, I could see Japan.

So the minute he left, I got up and put on my clothes. And I took off. Then I went out to the airport and I hooked a ride back to Frankfurt, Germany. Found out where our unit was and hooked a couple of rides back to when I finally joined my unit. It was somewhere in the Ruhr Valley. And so then I stayed with them until we wound up in Pilsen, Czechoslovakia at the end of the war.

STEPHANIE HEMPHILL: After Germany surrendered, Heaney got to use some of what he learned in law school. He was assigned to help occupy Germany, rewrite its labor laws. Then Japan surrendered, and Heaney was anxious to get back home. Again, the Army had plans for him. But he decided to appeal to his top military officer, General Patton himself.

GERALD HEANEY: I woke up one morning in the stars and stripes every day. They had a list of the troops that were going home. And their 2nd Ranger Battalion going to sail from Le Havre on such and such a date only a few days away. So I went to my commanding officer. And I said, I want to transfer back to the Rangers so I can go home with them. The war is over. I want to get back.

And he said, no. He said, your work isn't done here. So I went to the next guy. And he said, no. So the only choice I had left was to go to General Patton. So I checked around and I found out that he came into his headquarters in Munich nearly every day at about 7 o'clock in the morning.

And he'd just stay a short time. And then he'd get in the Jeep and go out hunt or whatever he did. And so I got up early in the morning, went over to his headquarters,. And his adjutant asked what I wanted. And I told him. And he said, well, I'll talk to the general when he comes in.

So sure enough, 7 o'clock in comes the General Pat. And I stand up and give him a big salute. And he asked the adjutant. He says, what does this officer want? And he told him. And so Patton said to me. He said, lieutenant, when did you join the Ranger battalion? And I said, in Camp Forrest, Tennessee.

He said, were you with them on D-Day? Yes. Were you with them in the Húrtgen forest? Yes. And he turned to the adjutant and said, give him anything he wants. So that's how I got home.

STEPHANIE HEMPHILL: Gerald Heaney's influence in the Democratic Party in Minnesota was about to begin. After World War II, he married Eleanor. They had met years ago in college, and they moved to Duluth. Heaney says it was the only big town in Minnesota that didn't have a lawyer working with the American Federation of Labor, the AFL, the mainstream labor organization.

He helped negotiate contracts and represented workers in disputes with employers. He says it was a good time to work with unions because retail clerks were only making $0.35 an hour, carpenters $1.50, hotel workers only $0.18 an hour. It didn't take him long to get back into politics again. And unlike his efforts as a boy posting signs for Al Smith on the telephone poles around Goodhue, this time, he backed a winner.

The year was 1948. Hubert Humphrey was then mayor of Minneapolis. He was an up and coming politician who was about to launch himself on the national scene through his campaign for the US Senate. Heaney knew Humphrey through his law school friend, Orville Freeman. He says Humphrey impressed him the moment they met,

GERALD HEANEY: And he was the most articulate man that I ever knew. And he said all of the things that I believed and he said them so well. And at that time, it wasn't a time when we took a lot of polls and tried to figure out what people thought. This is what we believed.

And Hubert Humphrey was able to articulate that. And Orwell was a great organizer and a disciplinarian. And he provided the steel that kept the DFL party together. And Hubert provided the inspiration. And my role was to organize Duluth and the Iron Range.

STEPHANIE HEMPHILL: Now, that must have been a challenge because I understand there were some people who didn't like Humphrey and didn't like Truman.

GERALD HEANEY: Yeah. In 1948, in the precinct caucuses, we had a big battle. And some of the people were supporting Henry Wallace. And I don't know whether they had a candidate against Hubert. They just weren't for him.

STEPHANIE HEMPHILL: What was that about? Is Henry Wallace more liberal, more radical than Truman was?

GERALD HEANEY: Well, a lot of people on the left were very unhappy with President Truman because of his position on the Cold War and his sponsorship of the Marshall Plan and the other plans to revitalize Europe.

STEPHANIE HEMPHILL: So did these people think that we should cooperate with Russia or the Soviet Union more?

GERALD HEANEY: Basically, basically, I think that was where the difference was.

STEPHANIE HEMPHILL: How did you go about organizing things then?

GERALD HEANEY: I didn't want to do it on the basis of using any tricks or anything. My problem was to get more people out to the precinct caucuses than they got out. And that's what we did. I think there were more people than the precinct caucuses in '48 at any time until '68 when we had all the people come out on the Vietnam War.

STEPHANIE HEMPHILL: And '48 is when Humphrey made a very dramatic speech. Once he'd gotten the nomination for senate, he went to the National Convention.

GERALD HEANEY: Yeah, yeah, and I didn't have the money to go so I missed that speech. I listened to it over the radio. They had this big dispute as to how far we were going to go in adopting civil rights plank for the Democratic Party. And Hubert organized it and spoke for it and got it passed. Probably elected Harry Truman.

[LAUGHS]

STEPHANIE HEMPHILL: And was that the year that Truman held up the newspaper saying that Dewey had won?

GERALD HEANEY: Right. And that was the year when Harry Truman came to Duluth. And it was the biggest crowd that I have seen in Duluth in the 60 years that I have lived here.

STEPHANIE HEMPHILL: After the election?

GERALD HEANEY: No, during the election, a campaign stop. And he came into Superior. And then took a motorcade from here up to the armory, which was the only venue that they had.

And that armory was filled by 10 o'clock in the morning and Superior Street. There were two and three deep all the way from the armory, almost down to Garfield Avenue, the most people I've ever seen in Duluth.

STEPHANIE HEMPHILL: Why do you say that Humphrey's speech probably won Truman the election?

GERALD HEANEY: Well, he solidified the Liberal voting, solidified the Black vote, which provided the margins that were necessary in some of the key states. He had an appeal to just ordinary, everyday people that not many Democratic candidates have had. I don't know whether they looked on them as a little guy, the underdog, or whatever it was.

But everybody anticipated that Dewey was going to win in a breeze. And this little guy comes out. I knew we were going to win when he came to Duluth and we saw this huge crowd. And then that evening, they went down to St. Paul, and they had the same kind of a thing.

STEPHANIE HEMPHILL: Truman was elected president and Hubert Humphrey was elected to the senate. By the mid-1960s, three Minnesota Democrats were in top positions in Washington. Humphrey had been elected vice president with Lyndon Johnson. Walter Mondale was appointed to take Humphrey's place in the senate. And Heaney's friend, Eugene McCarthy, had become the senior senator from Minnesota. Heaney's political friendships paid off for him in a way he never anticipated.

GERALD HEANEY: Then along comes 1966. And he calls me on the telephone one day and said, Gerry, would you like to be on the Court of Appeals? I said, I didn't even know there was a vacancy. And he said, well, if you want it, he said, it's yours.

And I said, well, I've got to talk with Eleanor. And I said, I think that I should call Fritz and Hubert and Orwell. Fritz was also in the Senate or was Secretary of Agriculture. And Hubert was vice president.

He said, that's fine. He said, I've talked to all of them and they're all for you. In those days, my hearing lasted for about 10 minutes. And McCarthy and Mondale came in and said a few nice things. And that was it. Not like today. I'd have a heck of a time today.

STEPHANIE HEMPHILL: The Eighth Circuit Court of Appeals hears cases from seven midwestern states, including Minnesota. Missouri is another. In the 1970s and '80s, Black citizens in Missouri were struggling to make a reality of the promise in the landmark Supreme Court ruling Brown versus Board of Education.

In 1982, a school desegregation case from St. Louis made its way to the appeals court. Heaney and his colleagues on the bench tried to create a desegregation plan that would work. What they came up with developed into a model for other courts throughout the country trying to fashion remedies for the intractable problem of segregated schools.

Heaney took such an interest in this case. He stayed in touch with the St Louis schools ever since. In fact, he recently wrote a book called Unending Struggle-- The Long Road to an Equal Education in St. Louis.

GERALD HEANEY: Minnie Liddell, who was a Black parent, whose kids had been bused across town to attend a Black school way on the other side of town, was fed up with it. And she got a lot of other Black women. And they finally got a lawyer. And they started this action in federal court.

The initial decision was appealed to our court and we said it was inadequate. And it was sent back. And then they come up with a program. And we embellished it somewhat and approved it. And the essence of the program was, first of all, that there would be a voluntary inter-district program.

In other words, any Black student from the city who wanted to could transfer to white suburban. Suburban schools were largely white. And the schools in the city were largely Black, 82% Black.

The requirement that we imposed was that the state would have to pay the transportation cost because otherwise, it was meaningless to say that they had to write if they didn't have any way to get to school.

And secondly, we required the state of Missouri to pay to the suburban schools the full cost of educating those kids. Otherwise, the suburban schools never would have accepted them. And as a result of that program, in a few years, we had by far the largest inter-district program in the nation.

And what the effect of that was, of course, it not only gave the Black kids an opportunity to go to an integrated school, but it also gave the white kids an opportunity. And most of the kids viewed it that way. The kids did. Some of the teachers did not, but very many of the parents.

And when this program was underway, whenever we had court in St. Louis, I'd go and visit either the suburban schools or the inner city schools to see what was happening.

STEPHANIE HEMPHILL: And what did you see happening?

GERALD HEANEY: We saw that these kids were getting up every morning in the dark and getting on a bus and going out to the suburban schools. And it didn't show a lot of gain in their test marks. But once larger percentage of them were graduating from high school and a much larger percentage of them were going on to college. Because they were now in an atmosphere where this was the thing to do.

STEPHANIE HEMPHILL: The state of Missouri appealed various aspects of Heaney's desegregation plan, and the US Supreme Court upheld it seven times. Another important and controversial case came to Heaney's court. This one involved American Indian activist Leonard Peltier. Peltier was convicted of killing two FBI agents in a shootout on the Pine Ridge Indian Reservation.

Heaney affirmed the conviction twice. But later, he urged clemency for Peltier as a way to heal the wounds of Pine Ridge and the rift between Native Americans and whites. Even in cases where Gerald Heaney found himself in the minority, his dissenting opinions have carried influence and have ultimately become accepted. He dissented in a case in which the court allowed the Jaycees to. bar women from membership. But the Supreme Court agreed with Heaney

Heaney has written against the death penalty. He says it doesn't work as a deterrent. States with the death penalty have just as much crime as states without it. And he says the way it's applied depends so much on circumstances like the prosecutor's inclinations, the lawyer's skills, and even where the defendant is charged. That by nature, it's unfair.

In Heaney's career, he's heard more than 3,000 cases. He has a reputation for close reading, careful research, and persuasive writing. But he also brought to those cases who he is as a person and where he came from. And for Heaney, none of those decisions came easily.

GERALD HEANEY: They're not obvious and they're difficult. And you do the best you can with them. And then after you make a decision, you don't fret over it. When I first went on the court, there was a wonderful judge from Iowa by the name of Martin Van Oosterhout.

And he told me early on, he said, Gerry, he says the Supreme Court has their view and I've got mine. And that's the way that it is. So you do the best you can.

STEPHANIE HEMPHILL: Well, that's the thing. I mean, justice is supposed to be justice. But different people see things differently. And people have different biases and so on.

GERALD HEANEY: Well, I listened to the hearings on Chief Justice Roberts. And he said again and again that a judge should look at the law and the facts and should make a decision on the basis of the law and the facts. And that his personal views should not enter into his decision.

I think if I'd been on the committee, I would have said to Justice Roberts, how then do you explain the many 5 to 4 decisions of the United States Supreme Court? They're all men of integrity, scholars of the law. They read the same cases. They read the same facts. But often they arrive at different conclusions.

And I think that we all have life experiences. In my life experiences, we're growing up in a small town. The kind father serving in the Army, representing the labor movement. Being involved in politics. Being heavily involved in the community and with UMD.

And so finally, when you get a hard case, a tough case that people can reasonably disagree on, it comes down to really what you think is best for our country in the long run. And so I suspect that when Eugene McCarthy suggested my name to President Johnson, it was because he and I and Hubert and Orville thought the same about the great issues of our time.

GARY EICHTEN: Former US Court of Appeals judge Gerald Heaney speaking in 2006 with Minnesota Public Radio's Stephanie Hemphill, part of our Voices of Minnesota series. Funeral services were held yesterday in Duluth for Gerald Heaney. He died last week at the age of 92.

That does it for Midday today. Gary Eichten here. Thanks for tuning in. I wanted to remind you, by the way, this is the final day of our budget year. And your support is really important to making sure the books balance. Please help pay for the news you rely on year round. Contribute online at minnesotapublicradio.org or you can give us a call 1-800-227-2811.

Invitation to join us for Midday tomorrow. We'll be talking with Minnesota's Supreme Court Chief Justice, the new Chief Justice, Lorie Gildea will be in studio to field your questions. This is Minnesota Public Radio News 91.1 KNOW Minneapolis St. Paul. Find breaking news and listen online at mprnewsq.org.

Sunny skies, 73 degrees. And we can look for a high today of 80 degrees, a beautiful summer day in the Twin Cities, sunny with a high of 80. Tonight, clear skies with an overnight low of 60 degrees. Then it starts to warm up, 85 for a high tomorrow.

85 with a sunny sky by Friday. And Saturday, 85 to 90 for temperature highs. And then on Sunday, Independence Day, there's a good chance of rain. The fireworks might get rained out. We'll see high temperatures, 85, on Sunday. 82 this afternoon.