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Mr. Justice Blackmun

the mouse that roared

This is Dark Cloud on Wednesday, April 06, 1994.

It is an old wheeze that all Presidents live to regret their appointments to the Supreme Court. Surely it was true with Teddy Roosevelt and Oliver Wendel Holmes and Dwight Eisenhower and Earl Warren, and many others but it most certainly is true with Richard Nixon and Harry Blackmun. When the cynical Nixon appointed Blackmun, there was not a whiff of scandal or even remote propriety concerns about the man; there was concern that he was not smart enough, but this estimate came from those who assumed that he was a granite headed conservative in the pocket of his friend and former best man, then chief justice Warren Burger. Burger came from St. Paul and Blackmun came from Minneapolis, and the two were called the Minneapolis Twins by those given to such punditry. Burger, an immeasurably vain and politically amiable gamecock for the Republicans, also assumed that Blackmun would be a cipher, much like the Republicans have, thus far, been able to count on Clarence Thomas, who votes with the conservative Chief Justice Rehnquist about 90% of the time. It became otherwise with Mr. Justice Blackmun.

Like Bill Clinton, Blackmun married a smart, assertive woman - even more impressive given the age of the romance - and he was always sensitive to and informed upon legal events that affected women. He never made any secret of it. He had all daughters, and this reinforced his tilt. But when he was appointed to the Supreme Court, none of this was synthesized by the Republican headhunters.

He looked like a satire of the white male establishment, skin like unrisen dough, thinning white hair, vaguely wizened and rather mousy in appearance. He looked exactly what the President hoped he would be: an uncontroversal moderate Republican that would tack with the wind of hot air blown by the politically connected Chief Justice, Warren Burger.

During his first years on the Court, Blackmun was slow and something of an embarrassment. Bear in mind that his first years on the court featured the final days of William Douglas, who wrote in his sleep, and who seemingly always issued his own opinions even when everyone agreed. William Brennen was at his prime, and Thurgood Marshall was still an institution, and the Liberal mind-set of the court was not happy with the new Nixon appointees. So Blackmun came in for his share of ridicule. When he was assigned the Roe Vs. Wade case, it was assumed it would be a pedantic and predictable restriction on abortion, at least by Chief Justice Burger.

When the opinion was written, Burger had to be resuscitated by strong restoratives and Byron White went ballistic with scathing condemnations of the new legal ground being plowed by Roe Vs. Wade. Blackmun, who had been council for the Mayo Clinic, was sensitive to and appreciative of a doctors decision, and the last thing he wanted to do was make attorneys the decision makers over a hospital bed. So he literally invented and institutionalized the trimester concept that underpins Roe Vs. Wade. To review, during the first trimester, Blackmun contended that nobody other than the mother had any right to even venture an opinion about the fetus. During the second trimester, interests involving the state arise. During the final trimester, the mother and the state approach parity about the responsibility for the fetus.

It seems too pat, and it is, and it has no legal basis anywhere in the world, but it exerts immeasurable good sense and does something all good law does: it is vague enough to allow interpretation according to eventual medical discovery. It is strict enough to allow lower courts to put its lessons into practice. In many ways, it is absolutely brilliant, with no precedents. It is likely to be, in two centuries, the one decision still studied and revered in law school. And considering how much authority attorneys and bookkeepers have over the hospital bed now, depending on coming events it may prove a startling exception to trend.

But Blackmun was ridiculed and threatened and he accepted it willingly. He never struck back at his fellows or the public. In fact the only time he seemed to show any emotion, and then only a startled curiosity, was after a speaking engagement and a woman rushed up and tearfully thanked him for Roe. He didn't know at the time the young woman was the Jane Doe on whose behalf the suit forever to be associated with his name had been filed.

Blackmun will not, yet, be hailed as a Great Judge like Holmes or Brandeis, Hughes or Marshall. He probably wasn't. He was too slow, too thorough, too consumed with the agony of being fair, all the penalties of thoughtful, intelligent people. But he was the right man at the right time, the one thing this country has always, somehow, been able to provide. And he was utterly unfettered by politics of the time.

When the far left condemns the pasty white male establishment, I would hope they would nudge open an exception for the slight old man from Minneapolis, who retires today. Hail, farewell, and well done.