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WASHINGTON — Scholars and journalists are eagerly anticipating the scheduled March 4 release of the papers of the late Justice Harry Blackmun, likely to be an unprecedented treasure-trove of inside information about the U.S. Supreme Court. March 4 marks the fifth anniversary of Blackmun’s death, the date he designated for full and unrestricted access to his papers housed at the Library of Congress. An index already available at the library indicates that the collection spans 630 linear feet, with 1,576 boxes containing folders with tantalizing titles such as “Notes exchanged between justices during court proceedings, 1970-1993.” “This could be huge — much more substantial than the Marshall or Douglas papers,” says Ross Davies, a professor at George Mason University School of Law. Davies plans to have a research assistant waiting at the door of the Library of Congress the morning of the papers’ public release. One sure sign of the keen interest in the papers has been the intense jockeying among news organizations for early access to the papers. Blackmun’s daughter Sally, the executor for the papers, said in an interview last week that Linda Greenhouse, the Pulitzer Prize-winning Supreme Court correspondent for The New York Times, and Nina Totenberg, longtime court correspondent for National Public Radio, have been given exclusive pre-release access to the papers for their respective media of print and broadcast journalism. Under the agreement with the two news organizations, Blackmun says, the two reporters have been allowed since Jan. 1 to examine the documents, while the general public must wait until March. The reporters, she says, have agreed not to publish or air their findings until March 4. Blackmun says that other media organizations — including Recorder affiliate Legal Times — that have sought access since she codified the arrangement with Greenhouse and Totenberg are being turned down. In the interview, Blackmun also confirmed that The Washington Post asked for early access before the exclusive arrangement was made, but was denied. Editors at the Post were described by one knowledgeable source outside the newspaper as “livid” over the favored treatment granted to the Times. “We were frankly very disappointed about the decision not to give us equal access with the Times,” says Post National Editor Mike Abramowitz. “Justice Blackmun is a public figure of enormous public significance, and the papers were supposed to be in the public domain.” Abramowitz adds, “I personally do not feel upset with The New York Times at all.” Executive Editor Leonard Downie Jr. and Post attorney David Kendall of Williams & Connolly repeatedly sought reconsideration of the exclusive deal, without success, according to sources at the Post. The Post petitioned Sally Blackmun and Yale Law School professor Harold Koh, a former clerk to the justice and now an adviser to Blackmun. Abramowitz confirms that in late December, Downie made a final written appeal to Sally Blackmun and sent copies of the letter to the Supreme Court’s nine justices. Blackmun says the appeals did not change her mind. She adds that, in reply to Downie’s letter, Chief Justice William Rehnquist “made them [the Post] aware” that the court has no role in determining access to the papers. A Post source says Koh invited the newspaper to make a proposal for early access in July, but did not mention a deadline. According to the source, by the time the Post replied in September with a plan for non-exclusive early access, the decision had already been made to give the Times exclusive access. For her part, Greenhouse says she began talking with Koh in July, but did not seek exclusivity. The offer to give the Times the only print media preview “fell in my lap,” she says. Some scholars voice anger about the exclusive arrangement, which one says would be a disservice to Blackmun’s legacy. “I don’t think Harry Blackmun would want to be seen as managing the news,” says one historian who requested anonymity. Another historian, Tinsley Yarbrough, who is writing a biography of Blackmun for Oxford University Press, was also turned down by Sally Blackmun. He expresses surprise that media organizations are being given an early look, but says he is not upset. “It happens. I’m just a little old college professor,” says Yarbrough, who teaches at East Carolina University and has written several judicial biographies. Sally Blackmun defends her decision, saying it was “based on how we thought my father would want his papers handled.” She says the decision was made in consultation with Koh, who assumes the position of Yale Law School dean in July. Blackmun is a lawyer for Darden Restaurants Inc. in Orlando, Fla. Darden operates Red Lobster, Olive Garden and other chain eateries nationwide. Daun van Ee, who is in charge of the Blackmun papers at the Library of Congress, says that under the instrument of gift from Blackmun to the library, any access to the papers before March 4 could be given only with the consent of Sally Blackmun. According to Koh, the late Justice Blackmun “thought very carefully about how he wanted his papers to be presented to the public.” Koh declined to comment on why Greenhouse and Totenberg were selected. “My role has been to effectuate the justice’s intent as faithfully as possible,” Koh says, adding that neither he nor Sally Blackmun will try to influence how Greenhouse or Totenberg report on the papers. “In accepting their proposals, we did not tell them in any way what to write.” Greenhouse says she will be looking for “a sense of the arc of Justice Blackmun’s career,” especially the shift in his views on the death penalty. An early supporter of capital punishment, Blackmun in the final year of his tenure famously proclaimed he would no longer affirm any death sentences. “From this day forward, I no longer shall tinker with the machinery of death,” he wrote in Callins v. Collins in 1994. Assisting Greenhouse in her research is Francis Lorson, the retired deputy clerk of the high court. Blackmun says Greenhouse and Totenberg are both allowed to bring in a researcher to help search through the files. Totenberg says, “I am very happy to be able to look at the papers.” She says she will begin her research soon. One motivation behind the unusual arrangement appeared to be a desire to avoid the media melee that followed the release of Justice Thurgood Marshall’s papers immediately after his death in 1993. The coverage of Marshall’s papers, which included documents prepared as recently as two years earlier, angered sitting justices and prompted a statement by Chief Justice William Rehnquist decrying the library’s “bad judgment.” Blackmun’s collection contains 530,800 items, more than three times the number in the Marshall papers. Court officials say justices have made no effort to interfere with or peek at the Blackmun papers in advance of their release. The fact that the papers will not include many court documents more recent than 10 years old — Blackmun retired in 1994 at the age of 85 — takes at least some of the sting out of the file for current justices. But those who know Blackmun’s penchant for saving everything that crossed his desk speculate that some current justices and Supreme Court officials will be discomfited by the disclosures in Blackmun’s papers. While he always told clerks and associates he was keeping extensive files out of a sense of duty to history, Blackmun had an irreverent side as well, leading some to think he might have relished the prospect of exposing at least some of his colleagues to unwanted publicity. “When he talked about these papers, he sometimes had an impish grin, as if he knew that they would cause dyspepsia for some of his fellow justices,” says one historian familiar with the papers. Blackmun’s relationships with other justices are likely to emerge in greater detail than ever before. Fellow Minnesotan Warren Burger, for example, is the subject of 14 folders, according to the index at the Library of Congress. Although Blackmun and Burger were labeled the “Minnesota Twins” early in Blackmun’s tenure, scholars and friends agree that Blackmun disliked the then-chief justice, and some of his sentiments may be reflected in his papers. Burger died in 1995. “I’m sure the justices are nervous,” says former Blackmun clerk Edward Lazarus, a lawyer at Akin Gump Strauss Hauer & Feld in Los Angeles. “He meticulously kept everything, and we all knew that at some point, some day, it would all be made public.” Lazarus cautions that Blackmun’s files, as comprehensive as they are, might have gaps. “Some of the correspondence did not go to the liberal justices,” he says. Emory University law professor David Garrow also says people who comb the Blackmun papers should not assume that everything there is seeing the light of day for the first time. The same documents or information might already have been revealed in the papers of Marshall, William O. Douglas, or Lewis Powell Jr. “The truly new territory in the Blackmun papers will be at the end,” says Garrow, referring to the nearly three years Blackmun served on the high court after Marshall retired in 1991. One key case that falls in that period is the 1992 decision Planned Parenthood of Southeastern Pennsylvania v. Casey, in which Justices Sandra Day O’Connor, David Souter and Anthony Kennedy wrote an unusual joint opinion upholding Blackmun’s Roe v. Wade abortion rights decision. Blackmun’s notes and materials on that case will be the first peek into how Casey evolved. Still, the biggest rush on the morning of March 4 may be toward the folders marked “ Roe v. Wade,” in search of clues about how Blackmun researched and wrote the 1973 landmark abortion ruling that was his best-known decision. At least 15 folders in the collection relate to Roe v. Wade, as well as more than 100 folders containing mail he received from the public about abortion. Also included in the release will be more than 30 hours of oral history interviews conducted by Koh, as well as Blackmun’s Federal Bureau of Investigation file, according to the index at the library. Members of the public who have requested his FBI file under the Freedom of Information Act have not yet received it. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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