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WASHINGTON — Most of the documents from the voluminous files of the late Justice Harry Blackmun released by the Library of Congress on Thursday shed important new light on the cases and controversies that came before him at the Supreme Court. But a more personal narrative of the isolated but contented life of a modest Supreme Court justice also emerged from the transcripts of 38 hours of interviews conducted with Blackmun for an oral history project a decade ago. The interviews, like Blackmun’s case files and his other court possessions, were released Thursday on the fifth anniversary of Blackmun’s death in 1999, and sections of them were aired on National Public Radio and were set for broadcast on public TV Thursday evening. Former law clerk Harold Koh, soon to be the dean of Yale Law School, conducted the 17 interviews with Blackmun. “These interviews show a man who grew, who had a remarkable capacity to change,” said Koh on Thursday. “By the end of his career he was the court’s leading liberal. He felt his job as a judge was to look out for the little people. He was the conscience of the Supreme Court in the late Twentieth Century.” Blackmun — best known for having written the majority opinion in Roe v. Wade in 1973 — speaks extensively about cases and other justices. He also fills in some blanks about his 24 years on the court. • What influenced the timing of his retirement? One factor was that his successor on the court would be named by President Bill Clinton, an abortion rights supporter. • Why he took so long to write Roe v. Wade? He wanted to research the meaning of the Hippocratic oath. • How he decided to oppose the death penalty in Callins v. Collins in 1994? He waited for a routine case without “nasty facts.” • Whom he recommended to succeed him on the court? He spoke highly of federal appeals judge Richard Arnold. The interviews reveal the personal side of Blackmun, and even his impishness. He did an impersonation of Justice Sandra Day O’Connor’s voice at one point, and in the final interview wiggled his ears for Koh — a trick he amused children with. But the oral histories, more than any written documents, also help explain why, throughout his 24-year tenure, he often ruled from his heart. “I never try to forget that there are people at the bottom of all these cases,” he says. He is unapologetic about the much-criticized exclamation “Poor Joshua!” in his 1989 dissent in DeShaney v. Winnebago County Department of Social Services, referring to the abused child in the case. “Many commentators, since the announcement of my retirement, say that I write from the heart or from compassion or something else and not from strict legal principle,” Blackmun tells Koh. “Well, that doesn’t bother me.” Blackmun also welcomes former clerk Pamela Karlan’s description of him as a justice who was supportive of society’s “outsiders” — gays, aliens, prison inmates and Native Americans, among others. “I’ve always been concerned with the outsiders, or the little people, I suppose because I was one of them, mainly,” Blackmun says, somewhat cryptically. OPINING ON THE JUSTICES Blackmun, in the interviews, offers friendly jabs at his colleagues, including his successor, Stephen Breyer, whom he knew beforehand. “How compassionate he was, how interested he was in the little person that are parties to our cases, I didn’t know actually,” Blackmun says. “But he’s able — fully qualified to sit on the Supreme Court.” As for Justice Ruth Bader Ginsburg, Blackmun says that her tardiness — and that of Justice Antonin Scalia — at court conferences sometimes riled Chief Justice William Rehnquist, who presides over the sessions. “Every now and then he would sniff and snort and say, �Where are those two?’ ” Blackmun recalls. Blackmun also marvels at all the questions Ginsburg and Scalia asked from the bench. “I’m a little personally critical of him,” Blackmun says of Scalia. “He asks too many questions on the bench and sometimes takes over the whole of counsel’s argument.” One day, through two oral arguments, Blackmun says, “I, just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia, there were over a hundred questions asked of counsel.” Rehnquist comes in for ribbing by Blackmun, on the subject of the chief justice’s gold-striped robe. When Rehnquist first wore the robe in the early 1990s, Blackmun says, he and his colleagues asked Rehnquist, “Was he wanting to bring back the crimson in the robes as the British had? What were the rest of us to do about it? Did this make him a sergeant or a captain? He was defensive about it, but not in an offensive way.” Blackmun offers quick analyses of other colleagues as well. Of the late Thurgood Marshall, Blackmun says, “I think the greatness, this will be a controversial remark . . . of Thurgood Marshall lies in his years of advocacy,” not his years on the court. Blackmun says he greatly admired Justice David Souter — and wonders why Souter is a bachelor. “He’d be a superb catch for the Washington social scene.” Another colleague, Potter Stewart, was pinpointed as the likely source for the book “The Brethren,” Bob Woodward and Scott Armstrong’s controversial 1979 inside look at the court. “I think the so-called leaks, such as they were, I always felt were attributable to that chamber,” Blackmun offered. Blackmun also says “The Brethren” was filled with inaccuracies and was “an obvious hatchet job on Chief Justice Burger, and it was meant to be such.” Of current Justice John Paul Stevens, Blackmun says, “It wouldn’t surprise me if maybe Justice Stevens would waver sometime” and oppose the death penalty, which Stevens has not yet done. But the interviews have their poignant side too, underlining the solitary nature of the job of Supreme Court justice. Few deep bonds develop among the justices, Blackmun says, lamenting, “I think we see too much of each other to develop close friendships.” In another interview, he speaks of his habit of doing research by himself in the court’s majestic library, rarely visited by his colleagues. “Justice O’Connor spent one day over in that corner desk laboring, but she never came back,” says Blackmun. “Maybe I bothered her too much or something. It’s almost been a private library, and a very luxurious one.” SPORTS FAN Koh conducted the interviews, most in Blackmun’s chambers, over the course of 17 months in 1994 and 1995. At one point, the justice points out a window that he often sat near in private moments. There, he says, he would eat lunch “when I’m alone and don’t want to be with anybody else and would rather read the sports page or something like that. I can look outside and see who’s picketing us and what’s going on out front.” Blackmun was appointed to the bench in 1970 by then-President Richard Nixon, after serving 11 years on the Eighth Circuit U.S. Court of Appeals. In the oral histories, he notes that when Nixon first considered him for nomination to the high court in 1970, Rehnquist, then assistant attorney general for the Office of Legal Counsel, interviewed Blackmun about his legal views. A year later, Rehnquist himself joined the court, becoming chief justice in 1986. “Ever since then, on certain occasions, when he and I disagree, and his view does not prevail on the court,” Blackmun says, “I can’t resist saying … to the chief justice, �You made a mistake in approving me back in 1970.’ And he always allows as how he did make a mistake. We josh about that back and forth.” As for Rehnquist’s predecessor as chief justice, Warren Burger, Blackmun’s comments during the interviews were gentler than might have been expected. Blackmun and Burger grew up together in St. Paul and were labeled the “Minnesota Twins” when Blackmun joined Burger on the high court. But they drifted apart, by the accounts of several scholars. Blackmun points to the 1974 Watergate case United States v. Nixon as the starting point of his estrangement with Burger. Under severe time pressure that summer, Burger circulated to his colleagues drafts of the opinion in sections. Most of the justices attacked different parts of the draft, and Blackmun himself revised Burger’s statement of the facts. “One would say maybe there was a palace revolution at the time,” Blackmun says. “Chief Justice Burger, understandably, is a very proud person, as all of us are, and he must have resented it,” recalls Blackmun. “It must have been as difficult a summer as he’s ever lived professionally.” He adds, “I’m sure that this case was a factor in the divergence from our former rather close relationship.” But, overall, most of Blackmun’s memories of Burger are positive. “I think I knew Warren Burger intimately, maybe in some ways better than he knew himself,” says Blackmun. “There was a lot of good in Warren Burger.” In one section of the interview, Blackmun indicates that he volunteered to the White House his opinion of possible successors. After making his retirement plans known in 1994, Blackmun says he mused to Joel Klein — a former clerk to Justice Lewis Powell and then deputy White House counsel — that he always wondered why presidents did not consult with current justices before nominating new ones. “Joel allowed how he had never heard of anybody calling. So after that, he did call [me],” Blackmun recalls. Klein asked him about Breyer and Eighth Circuit Judge Richard Arnold, as well as Interior Secretary Bruce Babbitt and Senate Majority Leader George Mitchell. The only potential nominee Blackmun says he knew well and recommended strongly was Little Rock, Ark.-based Arnold. Arnold “would have made a fine justice,” Blackmun says. But Arnold’s recent bout with cancer, plus his Arkansas heritage, which could have brought charges of cronyism, counted against him, Blackmun says. “But I’m sure that had the president made a selection from the heart, that Richard Arnold would’ve been high on his list, very high on his list,” Blackmun says. “Good judge, nice person, good chief judge, and just a delight to be with.” In 1993 Blackmun told President Bill Clinton on New Year’s Eve of his plans to retire. He attended the Renaissance Weekend at Hilton Head, S.C., and took Clinton aside to tell him. Characteristically, Blackmun says he did not think the news made much impact on Clinton. “The president of the United States has so many things on his mind, I don’t believe this was of that magnitude to upset his day or anything.” Why did Blackmun retire when he did? Koh asked him about speculation that the court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld Roe v. Wade, as well as the ascension of pro-choice Clinton, were triggering factors. Blackmun stopped short of stating outright that those were deciding factors, but he says they could have been influential. “I don’t know how true all that is,” says Blackmun. “Maybe the advent of Mr. Clinton as president of the United States was a factor. I’m not sure that it was. He at least was sympathetic to Roe against Wade. [It] made me feel that the precarious situation, if it was precarious, of that decision of 20 some years ago had pretty well passed and that it was safe.” Much of his narrative concerning the drafting of Roe v. Wade has been told elsewhere, including in “The Brethren,” as well as in David Garrow’s 1994 book “Liberty and Sexuality.” But in the interviews, Blackmun amplified his view on the importance of the Hippocratic oath in determining the outcome of the case. Classic versions of the Hippocratic oath, sworn to by graduating medical students, pledge that a doctor will not “deliver a pessary to a woman [to produce an abortion].” None of the briefs or the oral argument in December 1971 dealt with the issue adequately, Blackmun felt. So after Blackmun wrote a first draft that other justices wanted beefed up, he asked that the case be reargued the following fall, in October 1972. “I wanted to do a lot more work, including the research on the Hippocratic Oath,” Blackmun told Koh. During the intervening summer, Blackmun repaired to the library at the Mayo Clinic, where he had served as general counsel. Blackmun estimated he spent 10 days there — not the whole summer, as some had written. “No one on the Mayo staff knew what I was doing.” His research ultimately led him to minimize the importance of the Hippocratic oath’s seeming bar against a physician’s participation in abortion. For the first time, in the interviews, Blackmun explains what led him to proclaim his opposition to the death penalty in the 1994 case Callins v. Collins. Blackmun had expressed deep doubts about capital punishment as early as a 1962 decision he wrote as a judge on the Eighth Circuit. But Blackmun never joined Justices Thurgood Marshall and William Brennan Jr. in opposing the penalty outright, he says, because he did not agree with them that capital punishment was an Eighth Amendment violation. “In the Callins case, I reached officially the same conclusion, but did it really through the 14th Amendment equal protection and due process — more equal protection than due process,” Blackmun says. Earlier cases he participated in on the court taught him the flaws in capital punishment, Blackmun says. One he cites is McCleskey v. Kemp in 1987, in which the Supreme Court rejected by a 5-4 vote statistical evidence of racial disparities in the death penalty. Blackmun dissented. Because of racial disparities and other inconsistencies, Blackmun says to Koh, he decided that “it was impossible to administer the death penalty in a constitutional manner, that is, equally applied to all those who are accused of a capital crime.” Blackmun wrote several drafts of an opinion declaring his opposition to the death penalty and waited for the right case to come along — a “routine” case in which his dissent would stand out. “In bringing that dissent down, I wanted it in a, shall I say, a routine kind of case,” he says. The Texas case of death row inmate Bruce Callins “was kind of a routine murder without some of the nasty facts that accompany certain of these cases.” Callins was sentenced to death for killing a patron at a Fort Worth topless bar during a robbery in 1980. The Supreme Court denied Callins’ petition for writ of certiorari — from which Blackmun dissented. “From this day forward, I no longer shall tinker with the machinery of death,” Blackmun wrote, making headlines he says surprised him. “I wanted to get it off my chest,” Blackmun says. “But to my great surprise really and some satisfaction, at least it has created a lot of discussion in the academic world and in the judicial world, and that’s all for the good.” Blackmun says that after he ruled, he received a letter from Callins via Callins’ lawyer. “It was a nice letter, really, rather a touching letter,” Blackmun recalls. Callins did not make excuses for his murder or profess innocence, Blackmun says, but simply said he was a different person now. After the court’s action, Texas stayed his execution, but Callins was put to death in 1997, two years before Blackmun died. 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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