|PROFESSOR HAROLD KOH|
March 4, 2004
RAY SUAREZ: For people who follow this or for scholars, when they either sit and watch the (oral history) tape or go through the 400 plus pages, what's in it for them? Are there things that they've been waiting to know or wanting to know that are now known or knowable?
|Justice Blackmun reveals his inside story|
PROFESSOR HAROLD KOH: Well, I think -- it is important for three reasons. First, I think it is the authoritative archive of the Supreme Court for the last quarter of the 20th century. Anybody can recreate the story of any case from these files, and in many cases put it together with Justice Blackmun's own words in the oral history. So -- in any part of this, this allows you to recreate what happened.
Second, you see it from the perspective of a very unusual man, Harry Blackmun, who was on the court for 24 years. He's a very modest but very observant person, and he has a wonderful ability to take himself out of -- distance himself from the discussion, even while being very much a part of it. So you get to see these materials through his eyes.
And third, I think we see some of the most important social issues of our day played out both in the papers and in the oral history tapes: abortion, the death penalty, the right to privacy, federalism, the First Amendment -- all in a stage between people that we have heard of, but told through the work of this man. And I think it makes for a very fascinating story.
RAY SUAREZ: So there's no big headline where, once the embargo is broken, reporters, legal scholars, historians will be able to say now we can tell you what we didn't know before about this case, that case, this career --
PROFESSOR KOH: I don't know. What you see dimly, people will be able to see extremely clearly and almost on a minute by minute basis.
(People) often say, "I wish I had the inside story on this," (such as the) end of the civil rights movement, the big bang of the civil rights movement is in the middle of the Vietnam War ... stages of the Cold War. And there was a reaction to the war in court. Would the war in court's revolutionary instinct survive, or would they be tamed? And here Justice Blackmun came on with someone he had known for his whole life, his boyhood friend, Warren Burger. But interestingly, he saw himself as someone with a different set of interests than Warren Burger, and increasingly found himself speaking for the people.
This is something that comes out very much in Justice Blackmun's work. He saw himself as a justice for the people. He saw the court as serving the people. He saw the role of judges as protecting the people, and this is played out in issue area after issue area -- abortion, privacy, civil rights, the death penalty, federalism.
RAY SUAREZ: If you had to pick a top bunch as far as the echo that they send down in the succeeding years, a handful of cases that Blackmun sat in judgment on, which are the highlights of the period?
PROFESSOR KOH: I think it's worth identifying lines of cases because one of the great things of having a justice who is on the court for 24 years is you can actually see how various lines developed.
One is obviously the privacy line that started with Roe v. Wade, and previously with Griswold v. Connecticut, then moved to a series of cases that finally resolved themselves with Planned Parenthood v. Casey, which put Roe on a solid footing.
But then the dissent of Justice Blackmun in Bowers v. Hardwick, the homosexual sodomy case, in which he lodged a dissent that finally captured the majority of the court last term in Lawrence v. Texas. And I think what you see is an evolution of Justice Blackmun's own view. He started by essentially deferring to the doctor, but by the end he saw it as what he called in his closing press conference a critical step on the road to the emancipation of women, and protection of privacy as a fundamental human right under the Constitution.
Even at the time when he was confirmed for the Supreme Court he didn't like the death penalty, but he thought it wasn't the role of a judge to interfere. Nor did he agree with Justice Marshall and Justice Brennan's view that it was unconstitutional in all circumstances.
So what you see is he gave it a good faith effort to try to defer when it was administered fairly, and then over time he came to the conclusion it just could not be administered fairly. And it was at the end of his time on the court that he said, "I shall no longer tinker with the machinery of death."
It's arbitrarily administered. It's being administered in a racially discriminatory way, and I think I just have to be honest and say this is cruel and unusual punishment.
RAY SUAREZ: What's interesting about those lines of cases that he mentioned for me is that I don't hear precedents that are going to stand up for 95 years, like some of the other landmark cases in American law. It seems that when it came to things like affirmative action, like the rights of racial and ethnic minorities, the court in this era was refereeing incremental steps toward places that other courts and jurists of other generations may finally nail down the lid and create a kind of body of settled law that takes us longer than five years between this case and the next one, ten years between this case and its successor case. Is that fair?
PROFESSOR HAROLD KOH: I actually think that a lot of these areas, the balance that was struck during this era is the balance that's going to hold. I think the balance between privacy and the interest of the state. For example, the Pentagon Papers case, very relevant to our time, the balance between national security and civil liberties in a time of threat, I think the balance in federalism that was struck by Garcia is going to hold. There was an effort recently by the court in a number of cases to push the state's rights issue further, but I think that they've now started to roll back on that.
Another theme that emerges is the internationalization of American life and the role of the court in either facilitating that or not. Justice Blackmun was a remarkably internationalist person, extremely well traveled. He had gone to many countries. He saw America as part of the world, and saw that part of the role of the court is to promote that integration between the United States and international partners. So I think that this archive will be remembered as actually having marked certain key balancing points that are essentially holding.
Affirmative action is another area. It was Justice Blackmun who first said to those who argued for a principle of colorblindness, "In order to get beyond race, we must first take race into account." And the history of racial discrimination in this country has to be a factor in deciding how we're going to remedy it. He said that in Bakke in 1977, and in the Grutter case last term, that held the day.
RAY SUAREZ: It seemed like it was hanging by a thread, though. It wasn't a resounding slam-dunk for Bakke. It's still there.
PROFESSOR HAROLD KOH: It's still there. It's still there. I mean, I think a very important point is that Justice Blackmun, I think, revealed himself to be the conscience of the court in the late 20th century, and it's a -- he was a surprising candidate for that position. Here is a man who grew up in a very poor family, worked very hard, became a scholarship student, and went to Harvard. Went to work for a federal judge for an elite law firm, was a general counsel of the Mayo Clinic, and then was on the Court of Appeals.
So at the age of 60 when he was appointed to the Supreme Court, you would have thought that he would be a very status quo-oriented person. What I think people didn't count on were two things.
First, he had a great sense of human compassion, and second, he was a workaholic. He actually read everything that came in front of him for 24 years. His work ethic was legendary. And what I think he started to see was that the institutions of American life which he had grown up to trust so much, in fact often failed the underdog, and that there were people who were being systematically excluded and harmed by this institutional incapacity. And I think Roe vs. Wade really brought it home to him.
I think he started to see his own role as a judge, as protecting certain constitutional values that protect the underdog, and that theme of the underdog in American life, how they can be included occurs over and over again in these papers and in the oral history. Native Americans, women, homosexuals, illegitimates, aliens -- for all of them, Justice Blackmun had a sense of compassion.
So you have a guy who appears to be very mainstream, seeing his role as a protector of the outsider, and including them into American life. And for me, as an immigrant myself, I found it very inspirational.
|A notoriously modest man|
RAY SUAREZ: But in all these areas, he seems to have also been self-effacing. When you try to get him to talk about his concern and care for people who found themselves on the wrong end of the power continuum, he didn't take the bait. He didn't say, "Well, yes, you know, it was a time to start taking a good look at the qualifications of good and evil." He based it all on merit, ascribed to himself no particular traits of tolerance of open-mindedness. He just said, "Well, you know, people were ready to do a good job, and that was enough for me."
PROFESSOR HAROLD KOH: Well, I think these papers and this oral history will be an addition to the paper record. I mean, Justice Blackmun was not in these oral history tapes going to take a lot of credit for himself. He was notoriously modest. When he would be noticed on airplane trips and people would say to him, "What do you do for a living?" he'd say, "I'm a lawyer in Washington." He thought that it was inappropriate for him to draw attention to himself.
Nevertheless, I think where he does make strong statements is about the appropriate role of the Supreme Court in American life. The court belongs to the people. The job is not simply to affirm the power of majorities. Underdogs need to be included. These kinds of statements he made very strongly, you know. We must protect the vulnerable.
RAY SUAREZ: How does that mesh with what we're seeing now, an era of publicly stated contempt for courts, the sort of holding up of judicial activists and renegade jurists as a maligning influence on America?
PROFESSOR HAROLD KOH: Well, Justice Blackmun was a judge for most of his life, and I think he believed that judges are a tremendously important protector of American values. He was a genuine patriot. But he was not a politician. One of the striking things about him is he quite literally did not do anything to get any of his judicial appointments. He was picked out.
So the highly politicized atmosphere of today's judicial politics I think would have struck him as extremely odd. One of the great stories he tells was his confirmation hearing as a court of appeals judge, where he was not asked a single question about politics, and in fact, the whole hearing lasted for a few minutes. And instead he learned that the senator who had been to law school very briefly would ask him the question, "What is the rule of Shelley's case," which is no secure property case. So Justice Blackmun went over to the Library of Congress, found a property book, and came back and recited that line. And so he got confirmed.
And I think he felt genuine compassion for some of his colleagues on the court who had had much more difficult confirmation proceedings. In some way he thought judges should interpret the law, and judges should be judged by the skill with which they do so, and the integrity with which they do so.
RAY SUAREZ: Was he an accidental justice of the Supreme Court?
PROFESSOR HAROLD KOH: He certainly saw himself as that. He called himself "old number 3." Remember that first Clement Haynsworth and then Harrold Carswell had been nominated for the seat that was held by Abe Fortas, and when both of them had confirmation difficulties, it was only then that they turned to Justice Blackmun. And Justice Blackmun knew that Warren Burger was a Republican who had come from Minnesota and was already on the court.
So I think he had no reason to believe that he would be on the court. And what emerges is that I think the first year he was on the court, he found himself overwhelmed. The workload was much heavier than he ever expected. A large number of cases were split by a four to four vote, and they were reargued specifically to him. And he describes this as the time that a ton of bricks fell on him.
And I think that there is a real moment where he could have been paralyzed, and (he) could have found the whole situation overwhelming. But I think he did something that I find very admirable. He decided to himself, I don't know how I got here, but I have only one thing I can do -- to work as hard as I can, and try to do the best job I can and see which way it comes out.
He even has an inscription on his wall from Abe Lincoln that says precisely that, "Duty as seen by Lincoln: Just do the very best I know how, and hope it brings me out right." And that's what he did for 24 years, and by the end I think he found himself with a very distinctive voice, a voice of compassion, a voice of concern for the underdog.
A quote that I like very much from one of his opinions, he said, "We should remember that compassion should not be exiled from the province of judging," and he is really saying his own judicial philosophy. If people don't want me to say "poor Joshua" or in other ways express compassion, too bad. That's how I feel, and that doesn't make me any less of a judge.
RAY SUAREZ: Well, after 24 years, did he leave behind a reputation, a body of written work of his opinions, a reputation for legal discernment that ranks him high among the judges of this century?
PROFESSOR HAROLD KOH: Well, I think you can't ask a law clerk to evaluate their own boss. I think he will be remembered very well by history. I think his position on the right to privacy will hold. I think his position on the constitutional protection to be given to homosexuals has been affirmed by the court. I think his position on internationalism is being upheld. I think his position on the death penalty is influential.
And then there are a variety of areas where he contributed mightily: the commerce clause, taxation, empirical methods in constitutional law, all of which are extremely influential, and for which he doesn't get a lot of attention.
He said to me once, "You know, it's only after 20 years on the court that you really get going." And what he is really saying is if you have longevity and if you work hard, you will make an impact. And somebody who has been on the court for only five or ten years just can't do that.
RAY SUAREZ: Whose work did he admire?
PROFESSOR HAROLD KOH: He very much admired Justice Brennan, who he thought was a leader, and a leader on rights. He hugely admired Thurgood Marshall because he just felt that Justice Marshall had seen another world that he himself had not been party to. I think Justice Marshall's stories of litigating Brown v. the Board of Education, and enduring intense discrimination really moved Justice Blackmun.
One story that emerges from these papers is his close relationship with William O. Douglas, who was very different than he was. It turned out that there was a period when they overlapped on the court where they commuted to work together, and he learned a lot about Justice Douglas. And Justice Douglas and he were both, they weren't urban people. They shared a love of the wild, and Justice Blackmun's farewell letter to his colleagues quotes extensively from Justice Douglas' farewell letter to his colleagues.
And finally, I think he very much admired Hugo Black, who was on the court when he first got there. He tells the story that when he first got to the court, he was having trouble making his mind up, and that Hugo Black called him in and said, "Harry, go for the jugular, stick it in. Make it crystal clear. Don't agonize." And I think for Justice Blackmun that was kind of a revelation. He had been used to a kind of time on the Court of Appeals where he could spend a lot of time making decisions. But now he was in the big show, and he had to make up his mind quickly and be decisive, and I think he appreciated that advice.
RAY SUAREZ: It seems to me from reading the transcript (of the oral history) that he was a person who deferred to, and even cherished, in a way, the customs, the folk ways, the sort of accumulated weight of tradition in a place like the Supreme Court, but wasn't a captive to it at the same time. He could sort of see it for what it is, some of it was silly, some of it was useful, and choose for himself, instead of being in awe of it.
PROFESSOR HAROLD KOH: He revered the court as an institution, but I think he didn't want it to be a pompous institution, and he certainly didn't want it to be an institution that was not humane. For example, he was the justice who proposed that the guards who were outside the court, who would often stand outside shivering in the cold, be given sort of booths in which they could stand. He just said, "I don't think it's necessary."
He was the one who introduced piano to the court so that there could be music. He really believed that the court ought to be a human place. I don't know how many times he said to me, "The court belongs to the people." When he would get his invitations, he got hundreds of invitations to graduations every spring. He always accepted the graduation where no Supreme Court justice had ever come. And often these trips to go to these places would, you know, require three or four changes of airplane. But he thought it was very important that people get to see their Supreme Court justices.
So I think, as you say, in one sense he revered the court as an institution, but he really wanted to make people know that it was their court, not that of the justices.
RAY SUAREZ: It didn't sound, as he looked back on his time, and he was very close to the time when he was talking to it, that he cherished it as something that was fun, or exciting, or he got a thrill out of, the way someone who might in another field of endeavor who got to realize their dream and were playing at the top echelons of their chosen field would have. It seems like he saw it as a lot of work, necessary work, but not something that he thought, "I got to be there," that it made him special.
PROFESSOR HAROLD KOH: I think that's the difference between politicians and judges. Politicians throw themselves voluntarily into the political fray, and judges are brought there whether they like it or not.
I clerked in 1981-82, and at the end of that term, I said to him something like, "Mr. Justice, if you hadn't been a judge, what would you be doing now?" And he said to me almost wistfully, "I would have retired 10 years ago. Can you think of all the things I would have done?"
But then, you know, he said, "Well, I'm here," and I think there was a feeling that well, sometimes you don't get to pick your fate. His job, his fate, it turned out, was to be a Supreme Court justice, and so he thought that he should behave the way that American people would want a justice to behave. Hard working, fair, modest, committed to principle, doing the very best he could. And he didn't want to have to apologize at the end for having cut corners, and so he never did.
RAY SUAREZ: Did he love it?
PROFESSOR HAROLD KOH: I think he found many aspects of it extremely inspiring. Every day he would walk around the court at lunchtime, and then he would walk up the steps, the front steps of the court under the archway, which says "equal justice under law." And I think he did it both because he found it a thrill to do it, but also because he wanted to remind himself that his job was to bring about equal justice under law.
I think he got a huge kick out of all of the things that you get to see when you're in a high perch like that. He met many famous people, and he talks about them in the oral history, over the years. You know, he was from Minnesota, so he met famous baseball players and musicians, and he got a chance to go to state dinners at the White House. He met most of the presidents, and I think he found this fascinating.
He had a wonderful quality that even having been a powerful person for many years, he could still describe something as if he was a fly on the wall, and just convey a kind of impish excitement about having been able to witness things.
He also had a remarkable recollection for detail. On the day after Warren Burger died, we had an interview session, and I had not prepared him for this, and I said, "Could you just reminisce a little bit about Warren Burger," and he went on and he recounted Warren Burger's wedding. Twenty-five people had been there, and gave little biographies of all of them. So this was a person with a remarkable memory and a remarkable life for detail.
|The legacy of Roe v. Wade and other key cases|
RAY SUAREZ: He did watch very closely, and you quizzed him on this a bit, about how Rowe stood up as law in the face of various challenges, various refinements, various attempts to pull it down. He had a proprietary interest?
PROFESSOR HAROLD KOH: I think he felt that Roe was a very signal, constitutional moment. It was a clear protection of a kind of right to privacy as well as a clear protection of women's rights, and he saw that the irony of it was that it was a clear majority when decided, and that it came to be identified with him even though he wasn't the only person who voted for that side.
And then he saw it being whittled away, challenged, threatened, and he found himself in the unusual position of being its prime defender. And as various runs at it were made from different directions, I think he thought somebody had to reassert the core. The core of this idea is correct.
And when finally in Planned Parenthood v. Casey three justices-- Justices Souter, O'Connor, and Kennedy-- said, "Whatever we may think about Roe, the fact that this is a matter that's decided for the stability of the country and the court, we're going to maintain it." I think that gave him a sense of peace about it that he didn't have before.
RAY SUAREZ: Is that really his legacy, because he is the opinion writer and the person most closely associated with it? Twenty-five years from now, 50 years from now will we still be reading Harry Blackmun's opinion and talking about it?
PROFESSOR HAROLD KOH: I think, you know, he understood that it was his fate to be remembered as the author of Roe and the protector of the right to privacy, and I think he was proud of that. But I think what the papers and the oral history show is that that was part of a much broader jurisprudence: a jurisprudence of protecting minorities, a jurisprudence of correcting deficiencies in political process, a jurisprudence of compassion and the province of judging. And all of these, I think, are things that Roe is certainly a critical part of, but it's not the only part of it.
RAY SUAREZ: What about affirmative action? There have been many attempts to revisit not only Bakke but other cases that talk more to government contracting and the set-asides, a sort of groping toward a formula that everybody can live with, and that's a little tougher principle, isn't it?
PROFESSOR HAROLD KOH: Yes, I think Justice Blackmun's story is one of recognizing the debilitating effects of societal discrimination, and that the effort to replace it is going to take as long as the time of discrimination itself. And there has to be a sustained effort across a variety of sectors, and that it has to be conscious.
I think the notion that these remedies have to be race conscious, have to be sex conscious, were things that he firmly believed. As he put it, in order to get beyond race, we have to first take it into account. You can't discriminate against a group of people for centuries and then expect that it's going to disappear overnight without remedying it.
So I think he put it in very simple but elegant terms, and I think that those terms continue to set the terms of the debate.
RAY SUAREZ: Is there a consistent thread that weaves through all of these things about the law sort of being a constraining hand on the power of the state, a sort of intellectual approach toward the role of the person and the rights of the state, and how they work each other or work themselves out?
PROFESSOR HAROLD KOH: I think in a powerful idea of a law as a tool of inclusion that this is a society, which has haves and have-nots, and it's easy for the institutions to cater to the powerful. But that in fact, the underdog groups who are then excluded from the process never get a chance to rise in that process.
Justice Blackmun was, I think, very moved by the fact that he was from a poor background, but he had risen to the most, one of the most powerful jobs in America. And that gave him this spirit that this kind of upward mobility ought to be possible for everyone, and that people who faced permanent societal impediments, whether they're aliens, or Native Americans, or African-Americans, or women, or gays, or aliens ought to have someone who is saying these kinds of impediments are inconsistent with our notion of equality, and freedom as a personal fulfillment, and I think that that's what he tried to promote through his judicial work.
RAY SUAREZ: In quite another area, maybe it is related, but he is, in some ways, the father of modern baseball-- he and the other justices who voted in the majority on Curt Flood's case. They gave us (Jim) "Catfish" Hunter. They gave us "A-Rod" (Alex Rodriguez) and $252 million, perhaps unintentionally, but did he ever wonder about what he had unleashed by being part of the undoing of the reserve clause, because he was a ball fan, too.
PROFESSOR HAROLD KOH: He loved the game. He loved the game, and the Flood v. Kuhn opinion, the first part of the opinion is a kind of a reverie about baseball, all of the great players, and he mentions them all by name, Honus Wagner, and he loved watching these people play ball.
Now, I think it's funny because I think he felt that modern baseball has lost that love of the game in favor of love of other things -- money -- and I think he didn't find those things particularly appealing.
I think he sensed that the case may have contributed to it, and I think he regretted it, but I don't know that he felt that he was personally responsible for that.
RAY SUAREZ: Were there decisions that as he looked at them at the end of his career, he thought that he would rule another way ten, 20 years later, that he might have reconsidered at a different time in his life, not in a sense of regret, but more in the sense of an illustration of how you move over time?
PROFESSOR HAROLD KOH: Justice Blackmun said on the oral history tapes a number of times that there was no case that he would decide differently. What I do think, though, is that he did think that there were doctrines or cases which were wrong when he first addressed them, and that he tried to correct them over time, the death penalty being one, his position in the federalism cases being another.
I think he was acutely aware of how close some of these matters were when he first got involved with them, and then when he came to see them a different way, he wasn't afraid to say we should decide these cases differently.
One thing about him is, I think, he was not afraid to change his mind if he saw the world in a different light, and it showed a kind of intellectual flexibility, rather than simply saying, I said it before, I'll say it again-- he saw that there were important factors that may be unleashed, that couldn't be fully anticipated, and that they had to be taken into account.
|A judge committed to people over politics|
RAY SUAREZ: He didn't emerge as someone who was very political, and if you believe half of what people say about justices today, and the coaching of stealth candidates, and paper trails and all that, he may be a product of another era. But on many occasions in that transcript, he betrays that he didn't follow politics all that closely, didn't feel like he had a dog in a lot of different fights of the day, and almost tried to unburden himself from a lot of that. So if it came across his desk as a matter for judgment, he'd still be uncommitted.
PROFESSOR HAROLD KOH: Yeah, I think there have been many justices who have been known for their political activity-- Felix Frankfurter, Abe Fortas. Justice Blackmun was the opposite. You know, he was a moderate Republican, he voted for a number of Democrats. He described at one point pushing doorbells for Hubert Humphrey.
I think he enjoyed watching politics, but was happy not to participate in it. In the oral history he talks about the presidents he knew: Richard Nixon, Bill Clinton. He got a kick out of meeting these people.
One of the most amazing stories is the story of how Richard Nixon and John Mitchell told him that he would be the next Supreme Court nominee. And he said that they spoke to each other, calling each other "Mr. President," "Mr. Attorney General," as people who barely knew each other, even though they had been law partners for 30 years.
And then he introduces into this that they would announce his nomination except for the fact that Apollo 13 was on the other side of the moon, and so they had to get Apollo 13 back first before he could be nominated.
Now, what I think was remarkable is that not many people connect in their own mind the appointment of Harry Blackmun and Apollo 13. But throughout the oral history we would talk about different signal events in American life and what he was doing at the time, and how this affected the Supreme Court, and how were they thinking about things, and I think that that's a perspective that you often don't have.
RAY SUAREZ: He was very careful, it seemed to me, in the transcripts about the way he sized people up. Didn't want to be either too harsh or too lenient; didn't want to reveal too much of his own private thoughts about people. Probably it seemed that there were some things better left unsaid, and you tried. I mean, you gave it the old school try, but there were some things he just wasn't going to tell about his really private thoughts.
PROFESSOR HAROLD KOH: Yes. Justice Blackmun, I think, thought history would make their own verdict about many people, and he didn't think it was his job as schoolmaster to assign people grades. He was happy to compliment people at various points. In the oral history he talks about who were some of the best lawyers who appeared in front of him, or some of the justices that he admired the most, some of the politicians he liked the best. But he was very reluctant to pass a negative judgment on someone. But I don't think he had any sort of Panglossian vision. I think he thought that these people would be judged by history, as he would himself.
RAY SUAREZ: But he was protected at this point by the grave, in effect. It wouldn't be that there would be bad blood in life, and whatever people thought of him would be safely encapsulated by the passage of events. What harm would it be now in 2004 to know what he thought, for instance, of Richard Nixon, who was also dead?
PROFESSOR HAROLD KOH: Well, I think he thought that-- let me distinguish between his colleagues on the court and others. With his colleagues on the court, you have to remember that even though he disagreed with them, sometimes harshly, he was agreeing with them most of the time. They could go through a year in which they would be on the same side in 300 cases, and then be in sharp disagreement on three. And there was a sense in which Justice Blackmun was saying, "We're engaged in a common enterprise here, and in the same way as I'm not going to be overly critical of my brother or my law partner, I'm not going to be overly critical of another justice because frankly, it doesn't matter."
For example, Warren Burger was his lifelong friend, and they disagreed about many things, and they were extraordinarily different in personality. But at the end of the day, what mattered to Justice Blackmun was that they had happened to live these very rich lives in parallel, and he wasn't going to pick some incident and make this the bone of contention between the two of them that would last forever.
With regard to the different public figures, there are lots of ways in which he conveyed his views of them. I mean and primarily it was that people that he thought were really great, he would say they were great. And people he didn't think were so great, he just wouldn't say much about them. And he was very much from the school if you can't say anything good, don't say anything at all.
RAY SUAREZ: He, as you mentioned, did feel for people who had been through rough confirmation proceedings, or, in fact, weren't confirmed at all, and Robert Bork came up several times. Did he see something changing in the nature of how people became Supreme Court justices? I mean, his own entry into those hallowed precincts was pretty pro-forma, you know. A couple of minutes conversation and he was practically being waved through, and now it's a very different thing.
PROFESSOR HAROLD KOH: I think he saw a lot of politicization of the judicial process. I think it bothered him. And I think even people who, if they had gotten out of the court, would have been on the opposite side of many cases. He just, I think, felt for them. He could see himself in their position.
But that was one of his great human strengths -- his capacity to empathize with people, even those in dramatically different situations. He could see himself as Robert Bork, or he could see himself as Clarence Thomas. And in the end, I think he essentially thought the question was how good a judge is this person.
He quotes often Potter Stewart, his colleague. When he died, his tombstone read "He was a good lawyer." And Justice Blackmun thought that this was the highest compliment you could pay to somebody.
RAY SUAREZ: We seem to have left behind the era when prominent political persons would also be considered for seats. I mean, you may never see an Earl Warren again, and certainly not a William Howard Taft again. Did he see being a Supreme Court justice really as the province of lifetime jurists, of lawyers?
PROFESSOR HAROLD KOH: I think he had a high respect for lifetime lawyers. For example, I think Justice Souter he held in high regard. He was someone who was relatively unknown when chosen, but has proven to be an excellent lawyer, an excellent judge.
I think Justice Blackmun thought that having some people with political leadership skills on the court would help of the Earl Warren type. In the oral history he mentions the prospect that Mario Cuomo might be on the court, or that Bill Clinton could have been on the court as interesting, exciting possibilities.
So I think he thought that the court needed a health balance of both types. He liked to say something which is, "Every time there is a new justice, there is a new court. Even if there is only one new person and eight are the same, the whole dynamic changes," and I think he thought that that dynamic required good lawyers and good leaders.
RAY SUAREZ: Did he see the country that he was now moving into his last years of living, as a place changed for the better, from the place he grew up in as a young fellow in Minnesota? Did he see the impact of the kind of work he did?
PROFESSOR HAROLD KOH: I do think he thought that the country, while filled with turmoil, had gotten better. I think he very much believed in the progress of civilization and the contribution of law to bringing about the progress of civilization. And he marveled over technological advance, the ability of people to travel, the kinds of developments.
He was someone who grew up in the Depression, and, you know, the kind of prosperity of America stunned him. You know, he had lived in every decade of the 20th Century, and he had sat on 3,875 cases. He had been a judge for over 30 years. He had met almost every president. He had sat with many of the justices of the Supreme Court, a high percentage of the justices.
So I think this gave him a very broad perspective, and that comes through both in the papers and in the oral history.
RAY SUAREZ: If somebody was just learning about our system or just learning what a Supreme Court justice is, what would you want them to know about this particular guy that you think is important?
PROFESSOR HAROLD KOH: I think I would say that someone can be born in poverty, live in a protected environment, come to the Supreme Court at age 60, and find a voice as the conscience of the Supreme Court in the late 20th Century. That tells you something both about the man, about the court, and the country, and I think that in the end he will be of great interest to historians, but also an inspiration to younger people.
One of the funniest stories that comes through is a letter that he got from a small boy who said, "My name is Harry and I hate my name, and I've been told that your name is Harry, too, and I wanted to write you." And other people could have just laughed this off, but I think it was important for Justice Blackmun to be able to tell him no, you shouldn't be ashamed of yourself. You shouldn't feel that you are diminished. There have been some fine people who had the name Harry. He tells him about Harry Truman. But really what he was saying is the Supreme Court is not above you. It's for you. It's speaking to you.
And if I can be on the Supreme Court, so can you, and if I can advance justice, so can you. And I find it a very human face. It's nice to think of our Supreme Court as having a human face. And he gave the court his human face for 25 years.