Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey.

• Author: Wick, William A.
• Position: Book review

Becoming Justice Blackmun By Linda Greenhouse

BECOMING Justice Blackmun is a revealing study of the inner workings of our national Supreme Court and the intimate relationships of the Justices among themselves and with their respective law clerks, centered, however, as the book's title implies, on the principal author of the High Court's controversial decision, Roe v. Wade (1) upholding the constitutionality of abortion. The book is based on a large collection of childhood diaries, correspondence, internal Court memos, and drafts of opinions by Harry Blackmun, obtained by the author, Linda Greenhouse, during her tenure as a Supreme Court reporter for The New York Times. Ms. Greenhouse's account is notably free from any expression of the author's personal opinions.

Childhood, Warren Burger, and Choosing Law

Bright, but somewhat retiring, Harry A. Blackmun grew up in the home of his maternal grandparents in a suburb of St. Paul, Minnesota. By contrast with his self-confident and athletic neighbor, Warren Burger, whom he met in kindergarten, Harry was an inferior participant in sports. However, Harry won a high school oratory contest and, with help from his high school English teachers, he won a scholarship to Harvard at age sixteen. A minority in a university dominated by eastern prep school graduates, Harry joined the glee club and helped support himself with various jobs and as a math tutor. After receiving his undergraduate degree from Harvard University with Phi Beta Kappa honors, Harry opted to go to law school, once satisfied that law was the ideal choice for those with no strong bent in any other direction. Blackmun soon found the tough grading at Harvard Law School to be intimidating. He managed nevertheless to graduate three years later in 1932 with a more than respectable ranking near the top quarter of his law school class.

Returning to St. Paul in the midst of the Great Depression, Harry Blackmun passed the Minnesota Bar and was fortunate to be hired as a clerk for one of his former teachers, Judge John B. Sanborn of the Eighth Circuit Court of Appeals. Although the Judge at first seemed cold and distant to his new law clerk, the relationship warmed and Judge Sanborn ultimately materialized as young Harry Blackmun's role model, mentor, and even surrogate father. Harry's real father, by contrast, was a business failure, who inflicted on his son the burden of supporting his mother. After clerking for eighteen months, Harry took a job as an associate in a top Minneapolis-St. Paul law firm. Meanwhile, Harry's friend, Warren Burger, already a practicing Minnesota lawyer, was engaged to be married. Harry was pleased to serve as best man in his friend's wedding, while silently regretting that, as yet, he had no plans for the event, described in his diary as "one of the few things in life, worth while."

Law Practice and the Mayo Clinic

Reluctantly declining two offers to move to Washington at a higher salary from a former Harvard Law Professor, Mr. Blackmun elected, instead, to continue in 1935 his second year as an associate in the tax department of the Junell, Driscoll firm, regarded as the leading law firm in Minneapolis-St. Paul. An early assignment to the young associate was writing the brief in Douglas v. Willcuts, (2) a case before the United States Supreme Court. Despite the disappointing loss in the Supreme Court, Blackmun progressed with his law practice, and in 1943, he was admitted to full partnership in the Junell, Driscoll firm.

In 1938, Harry Blackmun met a girl with "pretty legs" on the tennis court, named Dorothy Clark, whom he courted for three years before marriage in 1941 and with whom he had three daughters. A major client of Blackmun's firm was the Mayo Clinic in Rochester, Minnesota. In 1949, the Clinic offered Blackmun a job as resident counsel, together with a senior management position. After checking out Rochester as a home for his family and the suitability of its schools for his three daughters, he accepted the offer, he later described the nine years that followed as "the happiest of my professional life."

Burger, the Politician, Moves to Washington

While Harry Blackmun prospered in the practice of law, Warren Burger succeeded in the art of politics. Attending the 1952 Republican Convention in Chicago as a delegate for former Minnesota governor, Harold Stassen, Mr. Burger helped swing the Minnesota delegation in favor of General Dwight D. Eisenhower in the political struggle with Ohio's Senator, Robert A Taft. Burger's reward was a post as Assistant Attorney General in the Eisenhower administration, with a supporting staff of 180 lawyers. Thus, Warren Burger relocated to Washington and said farewell to Minnesota.

Different Routes to Federal Courts of Appeals

In 1955, after two years in Washington, Warren Burger secured a nomination from President Eisenhower for appointment to the Court of Appeals for the D.C. Circuit. Harry Blackmun contributed to his friend's Senatorial confirmation with supporting letters to both Minnesota senators and to Democratic Senator, Hubert Humphrey. Mr. Burger was confirmed in 1956, while expressing doubts as to whether he was "qualified for this damned job."

A year later Burger reciprocated on Blackmun's behalf, when Judge Sanborn decided to elect senior status on the 8th Circuit Court of Appeals in St. Louis, creating a vacancy on that court. Sanborn wrote Blackmun of his intention, urging Blackmun to be a candidate for that nine judge court. Blackmun wavered over the decision. He analyzed the pros and cons. Two important cons included missing the Mayo clinic doctors and losing his $43,000 earnings at the Clinic in exchange for a judge's modest salary of $25,500. Two significant pros included retaining his Minnesota residence, where his daughters were nearing college age, while leaving his family only for one week each month to hear arguments before the Court in St. Louis.

Warren Burger, by contrast, harbored no doubts that Blackmun should jump at the chance for a judgeship on the 8th Circuit Court of Appeals and became a self-appointed manager of a campaign for Blackmun. Burger entertained retiring Judge Sanborn as his house guest in Washington and accompanied Judge Sanborn on a visit to Deputy Attorney Walsh, to promote Blackmun's cause, an unusual step for a sitting judge in Burger's position.

When Walsh invited Sanborn to suggest candidates to replace him on the 8th Circuit Court, Harry Blackmun was one of the three candidates Sanborn recommended. Aided by an "exceptionally well qualified" (3) rating by the A.B.A. Committee and persuaded by a call from Deputy Attorney Walsh, Blackmun agreed to be a candidate for the Appeals Court. Mr. Blackmun's candidacy progressed to Presidential nomination and after a delay in the confirmation process before the Democrat-controlled Senate, Mr. Blackmun was summoned to Washington for a hearing, unanimously confirmed by the Senate and assumed his seat as Judge Blackmun of the 8th Circuit Court of Appeals on November 12, 1959, his 51st birthday.

Onward and Upward to the Supreme Court

With characteristic industry, new Judge Blackmun went to work for the 8th Circuit Court, writing 217 opinions for that nine-judge Court during the ten years of his tenure. His unvaried practice was to read the briefs of the parties and the memos of his law clerks and then write a memorandum setting forth his initial conclusions. This was a time when a flood of school desegregation cases were submitted before the 8th Circuit, based on the Supreme Court's 1954 decision in Brown v. Board of Education, (4) rejecting after fifty-eight years the "separate, but equal" doctrine. Two noteworthy desegregation decisions, authored by Judge Blackmun, were Jones v. Alfred H. Mayer Co. (5) and Jackson v. Bishop. (6)

Judge Blackmun was also selected to write the opinion in Pope v. United States, (7) where all seven then active judges of the 8th Circuit unanimously upheld the death sentence, as applied to a young man, who had committed murders in connection with a robbery in Nebraska. Hyper-sensitive as always, Blackmun was sorely wounded, when two of his colleagues criticized and insisted that he delete "gratuitous" comments in his twenty-five page opinion, opposing capital punishments in general, and suggesting that justice would be served by a grant of executive clemency to Mr. Pope.

Not surprisingly, Warren Burger made his way to the judicial pinnacle ahead of Harry Blackmun. Aided by a law-and-order speech that attracted presidential attention, President Nixon nominated Burger for Chief Justice of the Supreme Court to succeed retiring Chief Justice Earl Warren. Upon Senate confirmation, Mr. Burger became Chief Justice in June, 1969. In a congratulatory letter to friend Burger, Blackmun wrote, "[n]ever feel any obligation or loyalty to me," noting that two 8th Circuit cases were before the High Court for argument. He added this assurance, undoubtedly sincere, but clouded by subsequent events: "Whatever you do, there will be no hard feeling between the two of us and no need ever to explain or defend."

The case for Blackmun's promotion came up not long afterwards. His name was first proposed for a Supreme Court opening by senior Mayo Clinic doctors in 1968 and advanced by support from two Minnesota Congressmen. A vacancy on the Court arose upon the forced resignation of Justice Fortas in 1969. This was followed by the confirmation failure of Nixon's first two Supreme Court nominees, Clement Haynesworth and G. Harrold Carswell on supposed grounds of "ethical insensitivity" and "hostility to civil rights," respectively. Finally came the nomination of Harry Blackmun, self described as "old number three." Did he accept instantaneously? No. He prepared a list of obstacles, including adverse reaction by other justices to his friendship with Chief Justice Burger; his tendency to spend too much time on his opinions; lack of appetite for...