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A cover story in Legal Affairs magazine that accuses the late Supreme Court Justice Harry Blackmun of “a scandalous abdication of judicial responsibility” because of an overdependence on his law clerks has triggered widespread criticism. Seth Waxman, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the magazine’s board of directors, said in a statement posted on the magazine’s Web site that the current issue containing the Blackmun article is a “jarring anomaly” that departs from Legal Affairs’ mission of “insightful discussion of issues at the intersection of law and policy.” Waxman, a former solicitor general and a frequent advocate before the high court, said he was “saddened” that the magazine’s editors sensationalized the article by Pulitzer Prize-winning historian David Garrow “with a demeaning cartoon cover and headlines that proclaim the unsupported conclusion that ‘more than any other justice in memory,’ Justice Blackmun did neither his own thinking nor writing.” Garrow’s article, based on research done in Blackmun’s papers released last year at the Library of Congress, recounts numerous cases in which memorandums from clerks and other documents show an outsized influence and assertive tone by clerks that Garrow says is unmatched by other justices whose papers are available. In one instance in 1994, Garrow says that from reading the clerk memos that led to Blackmun’s renunciation of the death penalty in Callins v. Collins, one may “rightly wonder who was functioning as a justice and who as a clerk.” In the 1990 Cruzan right-to-die case, Garrow quotes a memo in which a law clerk tells Blackmun she “does not really know” his views � an indication, says Garrow, that “by the spring of 1990, [Blackmun] was giving his law clerks little explicit direction in the court’s most notable cases.” Garrow also relates sharply partisan memos from clerks about national politics and about other justices, concluding that such rhetoric “should not have been tolerated by any justice.” But critics of the piece say Garrow was selective in what he wrote about and ignored contrary evidence. They also claim that because of Blackmun’s preference for written memos, his files give an exaggerated picture of the clerks’ influence. Georgetown University Law Center professor Mark Tushnet, a Court scholar and a former Thurgood Marshall law clerk, says, “A great deal of what Garrow identifies is perfectly standard law-clerk communication to a justice.” In a posting on the Balkinization weblog, Tushnet also said, “I would think it would be a good thing rather than a bad thing that a judge encouraged his law clerks to be forceful and assertive.” William McDaniel Jr., a former Blackmun clerk whose letter was also posted on the Legal Affairs Web site, said Garrow had reached his conclusions “by turning a blind eye to the great weight of the evidence that does not support his thesis, and by ignoring how the justice’s chambers functioned day to day.” “Professor Garrow’s piece is based on sadly defective research,” says Yale Law School Dean Harold Koh, who conducted an extensive oral history with Blackmun and orchestrated the release of his papers. “What he simply misses is that Justice Blackmun directed his clerks orally through myriad conversations each day. The clerks responded in writing. . . . Frankly, a justice as careful and thorough as Justice Blackmun deserves better.” Legal Affairs was launched in association with Koh’s Yale Law School in 2002, but ties between Yale and the magazine ended last October. The controversy surrounding Garrow’s article is the latest chapter in the perennial debate about the true influence of law clerks over their justices. Justices universally insist that they, not their clerks, run their chambers and set the tone and direction of rulings. But that has not kept critics from pointing to the significant role clerks play in the key functions of screening incoming cases and writing first drafts of opinions. Garrow, a professor at Emory University, defends his article. “I’m not in any respect surprised by the angry and defensive circling of the wagons. It’s exactly what I did expect,” says Garrow. “What’s most notable, I think, is that none of the negative reaction wants to discuss the specific evidence that’s so copiously detailed in the piece. They want to change the subject to something else: ‘Everybody does the same thing, only in Blackmun’s chambers did clerks write it down.’ “ Garrow also says that, if anything, the response of Blackmun clerks points to an even bigger problem at the Court � that clerks in general do too much of the Court’s work. “The real issue is not specific to Blackmun,” says Garrow, “but whether furnishing the justices with four clerks creates powerful incentives to the justices to do far less of their work than if they had only one. The debate that would be good is whether it would be better if they had just one clerk or at the most two.” Garrow, who had a friendly relationship with Blackmun and has interviewed other justices as well in his scholarly and journalistic work, says it was difficult for him to write critically about Blackmun, who retired in 1994 and died in 1999. “I didn’t want to do it,” Garrow says. But Garrow says he felt the evidence was compelling that Blackmun’s relationship with his clerks was sharply different from that of any of the 15 other justices whose papers he has seen among those who served in the last half-century. “Will we find someday that Justice Scalia’s file on Bush v. Gore reflects the same partisanship among the clerks that we see in Blackmun’s files in Planned Parenthood v. Casey?” Garrow asks. “I hope we don’t.” It was in the Casey file that some of the most stinging remarks are made by Blackmun’s clerks. Clerk Stephanie Dangel, now a lawyer in Pennsylvania, referred to Justice Antonin Scalia as “evil Nino” and worried that even though Casey would preserve Blackmun’s Roe v. Wade decision declaring a woman’s right to an abortion, the ruling “may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of President [George H.W.] Bush.” When the papers were first released last year, Dangel told Legal Times she had mixed feelings about the release of the memos, which she said she wrote in part to cheer Blackmun up. “There’s no avoiding the fact that the Court had become politicized on the issue,” she added at the time. The recurring theme among Blackmun law clerks responding to Garrow’s article was that Blackmun should not be faulted for being unique in wanting his clerks to put everything in writing. “Anything of substance was to be communicated through a ‘Mr. Justice’ memo, left on the top of the file cabinet outside his inner office,” says Andrew Schapiro, a Blackmun clerk who is now a partner in the New York City office of Mayer, Brown, Rowe & Maw. Blackmun would mark up the memos and return them. Schapiro, who authored some of the memos in the Callins v. Collins case mentioned by Garrow, also says, “Everything I drafted for Justice Blackmun, including the memo regarding the death penalty, was based firmly on things that the justice had been saying or issues he had been raising. . . . They didn’t just come out of thin air.” Though many of Garrow’s examples are from the latter part of Blackmun’s tenure, he also writes about the 1973 Roe v. Wade decision as a case of extraordinary clerk influence and assertiveness. He quotes several memos in which clerks assertively state their views about the case and what Blackmun should say. Randall Bezanson, one of the Roe-era clerks cited by Garrow, is sharply critical of Garrow’s article. “The conclusions he draws about assertiveness and forcefulness are a wrong and unfortunate misinterpretation,” says Bezanson, now a professor at the University of Iowa College of Law. “Justice Blackmun treated his clerks as people in whom he had confidence and from whom he wanted their views stated in a clear way. The justice was clearly in charge.” Bezanson, like others interviewed, says that Garrow’s interpretation might have been different if he had sought the perspectives of the clerks whose memos he cited. Asked about that point, Garrow says his goal in the article was “to put the documentary record out there without people doing a lot of backing and filling.” Lincoln Caplan, editor and president of Legal Affairs, says that Garrow “presented the article as a work of history,” and that he is satisfied that it is fair and accurate. Caplan also says that “it would have been acceptable and sensible to enhance the archival work” with views of the clerks, but not required. Tony Mauro can be contacted at [email protected].

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