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Justice Blackmun’s Legacy

April 6, 1994 at 12:00 AM EST
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ROBERT MACNEIL: To assess Supreme Court Justice Blackmun’s legacy, we’re joined by four court watchers. Kathleen Sullivan is a professor of law at Stanford University. Charles Fried was solicitor general during the Reagan administration and now teaches at Harvard. Stuart Taylor covers the Supreme Court for American Lawyer Magazine and is a frequent court analyst for The NewsHour, and Harold Koh teaches law at Yale University. He also served as a law clerk for Justice Blackmun on the Supreme Court.

Stuart Taylor, besides the most famous Roe vs. Wade decision, what other decisions mark Justice Blackmun’s time on the court?

STUART TAYLOR, American Lawyer Magazine: He’s I’d say known — he wrote a very important women’s rights decision a couple of years ago in which he held that it was sex discrimination, he held for a majority of the court that it was sex discrimination for companies to bar women from jobs in which there might be health risks to their fetuses.

This case involved a lead battery manufacturer. He’s written — he’s been a leading dissenter in the court’s decision in 1986 in which the court held that homosexual acts were not protected by the Constitution. Justice Blackmun argued strenuously and eloquently that they were. He’s been perhaps the strongest supporter of affirmative action and rigorous civil rights enforcement among the current members of the Supreme Court. He was the author of the fairly famous phrase in one of the first affirmative action decisions: “In order to get beyond racism you must first take account of race.”

And of course, recently, he’s become more and more critical of the death penalty. More generally speaking I’d say he’s known for his desire to humanize the court. He sees — he doesn’t really see issues so much — he sees people. And he’s very impatient with those of his colleagues who, who want to deal with legal theory. He’s much more inclined to try and do justice in, in the simple way that justice appeals to him, much as Chief Justice Warren was.

ROBERT MACNEIL: Kathleen Sullivan, what do you think Justice Blackmun’s legacy will be?

KATHLEEN SULLIVAN, Stanford Law School: Well, I agree with Stuart Taylor that this was a Justice who believed in the human side of the court. He didn’t try to be a giant on the court so much as a great human being there, to show compassion toward little persons and to avoid technicalities and further what was real for people in the real world.

I think his legacy on the court will be his commitment to right of privacy expressed in Roe V. Wade, and also as Stuart Taylor has mentioned, in his eloquent dissent from the sodomy decision, Barrows against Hardwick, in which he said in words that may come back on the other side some day, that the concept of privacy means the moral fact that a person belongs to him or herself. I think also significant is that he shifted so far from you might say right to left on the court proving that life tenure can change your mind. He started out voting almost consistently with Chief Justice Burger and with then Justice Rehnquist.

By the ’80s, he was voting more with Brennan and Marshall. He learned from being on the court. Another decision that he contributed to are contemporary constitutional laws, the right of commercial speech. In Virginia Board he said that people should have access to drug price advertising, and that set off a new direction on the First Amendment. But, again, what drove that opinion was his compassion.

What he was thinking of was that the poor, the aged, the sick need access to drugs, and, therefore, to information about how much they cost. He had solicitude too for aliens in a series of decisions favoring the rights of aliens right down to the Haitian refugees whom the court held recently could be sent back to Haiti, and he had solicitude for children, the children of illegal aliens who were denied a right to education in Texas, and so forth. Ironically though, the people who most vilified Blackmun think that if he had feeling for the little person, the poor, the sick, the aged, the young, he didn’t have feeling enough for the littlest persons, fetuses.

And Justice Blackmun, as he said in his press conference, has been vilified for Roe. I think that’s terribly ironic. In fact, he meant Roe to be a modest decision, a decision that addressed a difficult issue in a spirit of compromise, a decision that said no, abortion is not murder before viability but states may punish it as murder afterwards.

He literally tried in a solomonic way to split the baby in that decision, and yet, he’s been treated afterwards as someone who created a right of privacy out of whole cloth. I don’t think that’s true. The court had already created the right of privacy law before roe. I don’t think Harry Blackmun made anything up out of whole cloth. He was trying just to do what judges do in a spirit of humility and modesty. So it’s ironic that Roe was thought of was arrogant.

ROBERT MACNEIL: Charles Fried, we heard the President say the shoes to fill are large. How large are these shoes? Is this a great Justice?

CHARLES FRIED, Harvard University Law School: He was a very fine Justice, because at his best he fought hard about questions, and I must say I disagree with what Kathleen and Harold were saying, because I think they over emphasize how he succeeded when he was trying to be a human being. I think when he allowed his sentiments to run away with him, he failed. I think his opinion in Roe vs. Wade failed. I think people who applaud the result agree that it was a failed opinion. It’s an opinion which frankly didn’t make much sense.

On the other hand, his opinion, his dissent in Barrows vs. Hardwick, the sodomy opinion, was a very carefully thought out opinion and was very convincing and I think quite correct. So the sentiment sometimes ran away with him. It ran away with him when he concurred in the Casey case when Roe V. Wade was more or less reaffirmed, he said, I am 83 years old, I don’t know how long I will serve and so on. I thought that was quite inappropriate and indicated that, that he didn’t quite have his own, his own involvement in the decisions entirely in check, but when he did, he was really very fine. He did some careful work.

The commercial speech cases were extremely important, and I think they will have important outcomes later, particularly as, as the information superhighway comes along. But they were good because he fought the things through and he could do that. Just filling those shoes, I hope that they will be filled by someone who is capable of thought, who is a lawyer, and not just somebody who, who looks at outcomes and has the law clerk write the opinion. Harry Blackmun did not do that. And I hope whoever fills his shoes will not do that.

ROBERT MACNEIL: Harold Koh, you were his law clerk for a couple of years. Describe his way of working.

HAROLD KOH, Yale University Law School: He was a very diligent and hard working man, Robin. He gets into work every morning at 7. He stayed every day till 7. He went home, and he worked that night. He’s a tremendous reader. He reads every piece of paper that comes before him, and I think that that is the extraordinary thing about him. Most judges when they come to the Supreme Court, there’s a tendency to become isolated.

They have the trappings of power. They are very powerful people. Here was someone who came from very comfortable circumstances in Minnesota. He got to the court, and he had a certain view of judges that judges were supposed to be kind of umpires between the people and the state, between the people and the power structure of government.

But when he got to the court, I think he read the cert petitions that came to him, and he realized that the society that we live in has a lot more antagonism, a lot more struggle, a lot more suffering, a lot more hard choices. And I think he decided to give his voice to side with the excluded. If there’s a theme that runs through the cases that Kathleen has discussed, it’s his willingness to speak up, use his judicial voice for the powerless, the children, the pregnant women, the mentally retarded, the aliens, that that’s his function as a judge.

I guess I disagree with Charles’ characterization that he let his sentiments run away with him. I think I’ve never seen a more self-disciplined man. In fact, his act of retirement today is a classic self-disciplined move. He said it’s time. But the fact that he knew what he believed didn’t mean that he hid the human face of each case, and I think that’s what he saw, and that’s what made him special.

ROBERT MACNEIL: Well, just quickly going back over this, Charles – - Stuart Taylor — and I’ll ask the others — what impact is his late conversion on the death penalty going to have on, on that, on that subject?

CHARLES FRIED: I think it will have no impact at all. After all, Justices Brennan and Marshall stated that they think the death penalty’s unconstitutional under all circumstances. After they retired, there was no one who had that view, and Justice Blackmun coming to that position in the last months of his tenure is not significant.

ROBERT MACNEIL: Kathleen Sullivan, do you agree with that?

KATHLEEN SULLIVAN: I agree with that. There’s really no issue on which this appointment is likely to change any current controversy on the court. Blackmun wound up roughly where a new Democrat would be, tough on crime, except opposed to the death penalty, and liberal on social issues. This appointment, unlike the Ginsburg appointment and the White seat, is unlikely to tip the outcome of any decision but least of all the death penalty, which has already soundly allowed to be constitutional by the court.

ROBERT MACNEIL: Stuart Taylor, tell us who the leading candidates are in the speculation about successors to Blackmun.

STUART TAYLOR: There’s, there is one leading candidate who towers above the others in the speculation, and that’s Senate Majority Leader George Mitchell who, of course, has announced his retirement from the Senate and is available for a job. And administration officials have indicated to me that, that he would be by far the leading candidate but for some concern that they need him to push – - to put together a coalition on the health care bill that the President wants very badly, and they’re not sure they can spare him from that job.

ROBERT MACNEIL: Can I interrupt there. I just heard on CNN a while ago both Sen. Metzenbaum and Sen. Cohen, a Republican and Democrat, said that could be worked out, that he could stay and fulfill his obligations to the President on the health care bill and still be on the court in time for October.

CHARLES FRIED: It’s a temptation that I hope the President resists, because if the President wants to have an impact, he should be trying for more than just a vote. And looking at Sen. Mitchell’s record, which is a distinguished record in a sense, he is not known for having had any ideas, he is not associated with any programs. You might contrast him here with Pat Moynihan or Ted Kennedy. And, therefore, the best prediction could be that he would be a dependable vote, but the idea that he contribute ideas and, therefore, have any impact beyond the vote that he would cast I think is quite dubious, and I should think the President would want to have more of an impact on the court than that.

ROBERT MACNEIL: Harold Koh, what would you think about Sen. Mitchell?

HAROLD KOH: I think he’d be fine. I think there are many strong candidates, but I think that President Clinton said today, we’re looking for somebody with a largeness of spirit, and that’s what Justice Blackmun had, who cared less about his own impact on the court but on the court’s impact on people. Justice Blackmun said there’s another world out there that the court either chooses to ignore or fears to recognize. And I think what I would be looking for in a candidate is someone who’s also looking to those people in that other world, the excluded people who Justice Blackmun sought to protect.

ROBERT MACNEIL: Kathleen Sullivan, what do you think of Sen. Mitchell, since he seems to be head and shoulders the leading candidate?

KATHLEEN SULLIVAN: Sure. I strongly disagree with Charles Fried. I think Mitchell is a wonderful candidate for the court in many respects, but we have to go back a little bit in history. You have to remember that the grand old democratic tradition in the 20th century is to appoint not sitting judges to the court, people who’ve been isolated in chambers all their working lives, but to appoint former senators, former governors, former attorneys general, former solicitors general, former pals. That’s an old tradition that runs back as old as John Quincy Adams appointing that federalist pal John Marshall to be Chief Justice of the great 19th century court.

And why is it good to appoint someone who’s been schooled in the crucible of politics to the court? Well, because, as Justice Oliver Wendell Holmes said, “The life of the law is not logic but experience.” Or as Justice Felix Frankfurter put it, “It’s important for people to have insight into governmental affairs when they go on the court.”

Mitchell has that. He’s — he’s had experience in all three branches. He served as U.S. attorney in Maine, where he was very tough on crime and professionalized that office much in the way that William Weld did in Massachusetts before he became governor. He has served on the judicial bench briefly before he was appointed to Musky’s seat, and he’s — he’s had one of the fastest rises to Senate Majority Leader in recent history, showing his ability to bring consensus about on the legislative floor.

So here’s a man who’s been in all three branches. That’s the kind of experience this court, which is full of former sitting judges, is most missing. So if Clinton were to appoint Mitchell, he’d be in the spirit of FDR, Truman, JFK, and LBJ, who between them in sixteen appointments, appointed only two sitting judges, appointed mostly politicians. That rich experience, I agree with Harold Koh, helps them know what the real world is out there.

CHARLES FRIED: Then one thinks of Harold Burton and Sherman Minton and Fred Vincent, I agree, Kathleen.

ROBERT MACNEIL: Stuart Taylor, who else is on the list?

STUART TAYLOR: After George Mitchell, the ones I’m hearing most about are Jose Cabranes, who is a distinguished judge on the United States Court of Appeals for the Second Circuit, practices, works in New Haven, Connecticut. He is — looms larger than he otherwise would because he is of Hispanic ancestry, from Puerto Rico in his case, and the President would like to gratify that constituency.

Bruce Babbit, the Secretary of Interior, who was, of course, one of the finalists when, when Judge Ruth Bader Ginsburg was chosen last year, and who may be frankly more available this year than he was last year, since some of the bloom is off his rose at the Interior Department.

Richard Arnold, who’s a distinguished judge from Little Rock, who’s outstanding in might ways; he might have a couple of problems in that Little Rock has gotten a bad name in the national press in recent years and being an old friend of the President’s doesn’t seem to be as much an asset as it might have been before Whitewater publicity started. Also some of the women’s groups are mad at him about some opinions he’s written on the lower court. Drew Days, the solicitor general, can’t be counted out, a distinguished former Yale law professor.

ROBERT MACNEIL: Harold Koh, do you have any opinions on any of those?

HAROLD KOH: Well, I kind of root for the home team. I like Drew Days and Judge Jose Cabranes. I think that the two of them capture the kind of concern for the outsider, the large spiritedness that would make them fill Justice Blackmun’s shoes. You have to remember, in the last few years we’ve lost not only Justice Blackmun but also Justice Brennan and Justice Marshall, and in Judge Cabranes you have not just a Hispanic representative, but someone who’s bilingual, who understands the international realm.

He’s a distinguished professor of international law who has been an experienced trial law. And there are very few trial judges on the Supreme Court. And I think he brings a lot to the mix. I think Drew Days is a wonderful solicitor general and a man of tremendous integrity, and I would be delighted to see him there as well.

ROBERT MACNEIL: Charles Fried, how important, now that there are two women on the court and one African-American on the court, how important is it to have this other important minority, the Hispanic or Latino, segment of the public represented?

CHARLES FRIED: It would be a wonderful thing. I think it should not be allowed to loom too large. I think the person is more important than the particular label they come with. I think that Cabranes’s qualifications are really quite exceptional, and I rather share, I rather share Harold’s, Harold’s enthusiasm there. But I think it’s a little demeaning to both the office and to the person to speak of them just in terms of the group to which they belong.

ROBERT MACNEIL: All right. Well, Prof. Fried, Prof. Sullivan, Prof. Koh, and Stuart Taylor, thank you all.