Justice Blackman retires - 8 April 1994

On Wednesday morning there was a not so solemn but very impressive ceremony in Washington in a chamber of the Supreme Court. One of the nine justices announced his retirement. He'd already sent a formal letter to the president and appeared with him at a brief press conference where the usual courtesies were exchanged but later, at the court itself, Justice Harry Blackmun had the field and the reporters to himself and he mused and rambled on with a lot of affability and much wisdom.

Of course he was asked, as an old judge is always asked, why he was retiring. He looked kindly on the pink-faced youngster who couldn't have been a day over 40 and said, my goodness, 85 is very old. Not so long ago, the first black man to serve on the court, Justice Thurgood Marshall decided to retire when he was 84. He was asked the same question, he did not look kindly on the simple-minded youngster, he said, good god man, because I'm falling apart. He died shortly afterwards.

Well it's good to see and hear that Justice Blackmun is not falling apart, but he said, I don't want to reach a point where my senility is of unacceptable proportions. And I don't want to be asked to retire like Oliver Wendell Holmes Jr. That, by the way, was one of the saddest moments in the life of the court and in the life of Justice Holmes, a majestic Yankee, an old Bostonian of absolutely untouchable dignity, who waited too long and had to be begged to retire by his colleagues.

The retirement of a SupremeCourt justice is, I suppose, unlike in political importance, anything in a parliamentary system. In this country and this system, it is surpassed in political importance only by the election of a new president, whether the retiring justice is someone of strong opinions or whether he's a mediocre wishy-washy mind. There has to be a new judge appointed and according to his, her liberal or conservative bent, much of the coming law-making will be decided one way or the other.

Unlike a president or a prime minister, a justice of the Supreme Court is not there for four or five years, he, she, oh dear, out language, is there for life. Now everybody, including the appointing president pretends they they're looking for a judge who will be objective, neutral, disinterested, above the battle, eager at all time to interpret the laws, not to make them, yet every president is really looking for someone after his own heart, politically speaking. So every time a new justice is nominated, somebody in the opposition party, the party not in the White House, raises a hue and cry about the unfairness, the partisan crudity of the president's choice.

I'm sure that at this moment President Clinton is tossing it back and forth in his mind. I hope he's not only looking for someone who is as liberal politically as he is, but one who will stay that way. Franklin Roosevelt, in the heyday of his New Deal, a liberal movement as close to a national socialist movement as this country has ever had, named to the court one of the chief architects of that programme. His name was Felix Frankfurter. Not long after he got on the court, Frankfurter deeply offended his idolaters by turning into one of the most conservative justices of all time. And there is the even more flagrant case of the late Earl Warren, former Governor of California. A former district attorney, a conservative Republican, a pillar of the country club, very much for God and mother and baseball and against sin, crime, a national health insurance system, the communists and the Democrats. Just the man President Eisenhower thought, to bring a cool head to the liberal hotheads appointed by Franklin Roosevelt. Towards the end of his life on the court, Warren said, on the court I saw things in a different light. Eisenhower said his appointment to Warren was, the biggest damfool mistake I ever made.

Warren's case is worth looking at a little longer because it makes plain something that presidents and the Senate Judiciary Committee that searches a nominee's past rarely dig into. Not a man's legal history but the history of his working life, the events that gave him is rooted convictions. When Governor Warren came to be nominated and then confirmed, I don't believe anybody considered an item in his boyhood, that later on to a close friend he mentioned as a turning point in his life and his opinions.

When he was 12 years old, there was a workers' strike on the Southern Pacific Railroad. His father, a train repairman, was the leader of it. The men stayed out for almost a year and then they were beaten by the Southern Pacific, as almost any opponent of the Southern Pacific was beaten a hundred and fewer years ago. At one time it was said of the railroad that it owned the best state senators money could buy. Warren's only published remark about that grim year was, we had a time of it in our home, getting enough to eat. Warren had moved up, the son of Scandinavian immigrants, through the public schools, worked as a truck driver and a freight goods handler on the railroads, put himself through college, studied law, was in the infantry in the First War, back to the law and so onward and upward to the country club and the conservative wing of the establishment. Eisenhower's man if ever there was one.

Warren had not been on the Court more than eight months when there came up the case of that small black girl who had to walk two miles to a black school instead of going to the white school round the corner. The Supreme Court, what a day, just 40 years ago next month. The court ordered the integrating of blacks and whites in all American public schools and, by extension, the end of segregation in restaurants, clubs, theatres, swimming baths, lavatories, shops, everywhere. The black revolution was on and the majority opinion in that landmark case was written by Justice Earl Warren. After that he was the leading voice on the court, championing free legal aid for accused criminals. He extended the constitutional rights of convicted criminals and in other ways delighted the liberals and appalled President Eisenhower,

The former President Nixon could add another cautionary tale for Mr Clinton, namely the case of one Harry Blackmun the very man who's just retired. In 1970 there was a vacancy on the court. President Nixon put up a man and the Senate Judiciary Committee turned him down as unqualified. Mr Nixon tried again and named a judge that the committee found incompetent. The main charge against him was that he was mediocre. When up spoke a senator from Nebraska, who has become immortal on account of this single remark. Mediocre, he said, most of the American people are mediocre and they have a right to be represented on the court. He too was turned down, a unique humiliation for a president, for Mr Nixon. So he looked around for a third, a solid, harmless, pleasant, Midwestern Republican conservative judge and found him, in Harry Blackmun. He was confirmed without controversy and Mr Nixon could look forward to Harry Blackmun's doing for the liberal Warren Court, what Earl Warren had been meant to do for the liberal Roosevelt Court, namely cool it down.

Well, Justice Blackmun did not go off into left field with quite the outrageous speed of Earl Warren, but only three years after his appointment, he was responsible more than any other single judge, for a court decision as historic as the Warren integration decision that sparked the black revolution. It's hard now to believe it's been 21 years since there came up on the court docket, the case of Roe v. Wade. It was the court decision that established a woman's right to an abortion. Down the intervening 21 years, that decision has been fought up and down the land and subsequent cases brought before the court, have sought to moderate it into oblivion.

Only four years ago, the court, by what has become the narrow but prevailing edge, five to four, upheld a much more restrictive abortion law in the state of Missouri. Justice Blackmun wrote the dissent and said, I fear for the future, the signs are evident and ominous and a chill wind blows. However, two years ago another case challenging Roe v. Wade was won by Planned Parenthood, the pro-abortion lobby and Blackmun wrote, just when many expected the darkness to fall, the flame has grown bright. It does seem now that Justice Blackmun is leaving at a time when Roe v. Wade is never likely to be overturned. Justice Blackmun mildly protested on Wednesday at his identification solely with that issue. I've written many anti-trust opinions, he said to chaffing laughter. But he had to admit that more than any other judge or person, he will be honoured or execrated for establishing the right to abortion. For that alone, he's worshipped as a great liberal in some places, despised and abused in others. He has, he said the other day, a lively package of hate mail and he's offered to exchange it with the president's file.

Well, from these three cases and there are others, of apparent betrayal, betrayal of the president who appointed them, the question arises, what happens, what changes them? I don't think it's a difficult answer but it's something that politicians don't take into account. The answer lies on one or two facts about the job of a justice that together give him a new kind of freedom he'd not anticipated. He's not elected, he will never have to seek re-election, he is paid, he is there for life. He no longer has to shave his opinions to favour any one side, even his own side. Public opinion can't touch him. In a word, he can do something that is a very rare luxury for anybody in a job who has a boss to please. He can afford to become himself.

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