Sep 25, 2005
Stanley Kutler: Review of Linda Greenhouse's Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Times Books)
The day that former president Lyndon Johnson died, January 22, 1973, Justice Harry Blackmun announced the Supreme Court’s 7-to-2 decision in Roe v. Wade, legalizing abortion throughout the nation. The media led with Johnson’s passing, while Blackmun, in his diary, noted “abortion flak,” including protests from three cardinals and the Vatican. Picketers and police protection greeted him the next day in Cedar Rapids, Iowa. As Linda Greenhouse notes in her perceptive portrayal of Blackmun’s career, “the rest of Harry Blackmun’s life had begun” -- as did our abortion wars....
Following the Senate’s rejection of his first two choices for the Court in 1970, Richard Nixon trumpeted Blackmun as a judge with a “strict construction” philosophy. Strict construction has been code language for reactionary objectives from its first appearance with Jefferson’s abortive attempt to prevent the establishment of a central bank in 1792, through the convolutions of southern apologists for slavery and segregation, down to the present. In practice, the Court has to give a broad construction to the Framers’ language to ensure a “living Constitution.”
Ironically, Nixon had condemned strict construction in 1962, blaming it for the Court’s enforcement of the anti-establishment clause of the First Amendment in a New York school-prayer case. But seven years later, our serial political opportunist -- now anxious to appeal to Americans alienated by judicial rulings on racial equality, church-state separation, and the rights of the accused -- revived strict construction.
Blackmun’s record as an appellate judge proved quite solid, albeit somewhat pedestrian, and his Senate hearing lasted less than four hours, during which he assured the Judiciary Committee that he would not hesitate to disagree with his boyhood friend, now Chief Justice Burger. There were no hostile witnesses, and the Senate unanimously confirmed him, 94 to 0. Blackmun was 61. His mother warned him that his relationship with Burger would inevitably change. Mothers know best.
Then–Assistant Attorney General William Rehnquist had ably and perceptively reviewed Blackmun’s judicial record. “He does not uniformly come out on one side or the other, though his tendencies are certainly more in the conservative direction than in the liberal,” Rehnquist wrote. “His opinions are all carefully reasoned, and give no indication of a preconceived bias in one direction or the other.”
When Nixon’s press secretary described Blackmun as a strict constructionist, the judge responded that he did not work according to labels but “tried to call them as I see them.” Undoubtedly he saw himself as an advocate of “judicial restraint,” a term flexible enough to accommodate a broad array of justices across the political and legal spectrum, from Hugo Black to Black’s great antagonist, Felix Frankfurter. It used to be axiomatic that justices defied easy pigeonholing. The Washington Post presciently commented that Blackmun’s “opinions and reputation indicate that he is a conservative with an independent mind and sensitivity to new ideas.”
Blackmun ended his career in 1994, lauded and vilified as the most “liberal” of the justices, but its beginnings certainly did not point in that direction. His earliest opinions were undramatic and workmanlike; most notably, he sided with the government in the Pentagon Papers case, and appeared very much as Burger’s close ally....
Following the Senate’s rejection of his first two choices for the Court in 1970, Richard Nixon trumpeted Blackmun as a judge with a “strict construction” philosophy. Strict construction has been code language for reactionary objectives from its first appearance with Jefferson’s abortive attempt to prevent the establishment of a central bank in 1792, through the convolutions of southern apologists for slavery and segregation, down to the present. In practice, the Court has to give a broad construction to the Framers’ language to ensure a “living Constitution.”
Ironically, Nixon had condemned strict construction in 1962, blaming it for the Court’s enforcement of the anti-establishment clause of the First Amendment in a New York school-prayer case. But seven years later, our serial political opportunist -- now anxious to appeal to Americans alienated by judicial rulings on racial equality, church-state separation, and the rights of the accused -- revived strict construction.
Blackmun’s record as an appellate judge proved quite solid, albeit somewhat pedestrian, and his Senate hearing lasted less than four hours, during which he assured the Judiciary Committee that he would not hesitate to disagree with his boyhood friend, now Chief Justice Burger. There were no hostile witnesses, and the Senate unanimously confirmed him, 94 to 0. Blackmun was 61. His mother warned him that his relationship with Burger would inevitably change. Mothers know best.
Then–Assistant Attorney General William Rehnquist had ably and perceptively reviewed Blackmun’s judicial record. “He does not uniformly come out on one side or the other, though his tendencies are certainly more in the conservative direction than in the liberal,” Rehnquist wrote. “His opinions are all carefully reasoned, and give no indication of a preconceived bias in one direction or the other.”
When Nixon’s press secretary described Blackmun as a strict constructionist, the judge responded that he did not work according to labels but “tried to call them as I see them.” Undoubtedly he saw himself as an advocate of “judicial restraint,” a term flexible enough to accommodate a broad array of justices across the political and legal spectrum, from Hugo Black to Black’s great antagonist, Felix Frankfurter. It used to be axiomatic that justices defied easy pigeonholing. The Washington Post presciently commented that Blackmun’s “opinions and reputation indicate that he is a conservative with an independent mind and sensitivity to new ideas.”
Blackmun ended his career in 1994, lauded and vilified as the most “liberal” of the justices, but its beginnings certainly did not point in that direction. His earliest opinions were undramatic and workmanlike; most notably, he sided with the government in the Pentagon Papers case, and appeared very much as Burger’s close ally....