Blogs > Cliopatria > Poor Harry Blackmun ...

Apr 21, 2005 7:07 am

Poor Harry Blackmun ...

This is what he gets for rising beyond himself. Justice Harry Blackmun (1908-1999) was appointed to the United States Supreme Court by Richard Nixon after the Senate had rejected two of Nixon's nominees to the Court. It isn't as if court confirmation battles are anything new. The struggles over those two nominations had been bitter ones. Both Nixon and the Senate needed a confirmable nominee and they found him in Chief Justice Warren Burger's rather colorless childhood friend, Harry Blackmun. He was a tax lawyer appointed to the federal appellate court by President Eisenhower. There, his most important decision came in Jackson v Bishop, probably the first appellate decision in which the physical abuse of prisoners was held to be cruel and unusual punishment, prohibited under the Constitution. Blackmun was confirmed without opposition. The expectation was that he would be a faithful shadow of Chief Justice Burger and, briefly, they were known as the Minnesota Twins. But, in 1972, Blackmun stepped out of the shadow to pen the Court's majority decision in Roe v. Wade. Based on a newly enunciated right of privacy, Roe and a companion decision found all state laws that made abortion a felony to be unconstitutional. Thereafter, his friendship with Warren Burger deteriorated and Blackmun was, increasingly, a pillar on the liberal side of the Court.

No serious legal scholar claims that Harry Blackmun had a profound legal mind, but relatively few justices on the Supreme Court ever have had. It fell to Blackmun, however, to write the Court's majority decision in a case that increasingly seems to have been a watershed in American legal and political history. More divisive, even, than Brown v Board of Education, which the country has basically absorbed. Some respected scholars believe that the logic behind the Brown decision was legal lite, but no one seriously proposes that it be overturned. That can hardly be said of Roe.

Harry Blackmun died six years ago, but he's in the headlines again. David Garrow charges that, especially in his later years on the Court, he was a creature of his clerks (scroll down) – serving no more glorious role than as a cite checker to their work. This morning, David Brooks charges that"Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American." By lifting the abortion debate out of legislatures and finding a constitutional right to an abortion, Brooks argues, Blackmun and his colleagues poisoned the well of healthy political give and take – negotiated legislative settlements. Blackmun and Roe are the cause of our deep alienation.

I think David are wrong – and wrong, not because Blackmun was any Goliath. You can find the alienation in the struggles that defeated Nixon's nominations of Clement Haynesworth and G. Harrold Carswell to the Supreme Court. The titanic court confirmation battles did not begin with Robert Bork in 1988, but with Lyndon Johnson's failed nomination of Abe Fortas to be Chief Justice in 1968; and, especially, Richard Nixon's failed nominations of Haynesworth and Carswell in 1970. Those battles were even more closely contested than the much later one over Bork. Blackmun was the colorless, face-saving nominee that both sides needed. Unlike Bork, he laid no claim to brilliance. Brooks is wrong because he says that the only solution to our current malaise is to reverse Roe – that is, our polarization can be ended only by the judicial victory of its opposition.

The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can't stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.
His is the folly of thinking that you can resolve things only by putting the genie back in the bottle. His is the folly of thinking that pre-Roe abortions were sanitary, if illegal affairs. His is the folly of thinking that American women are prepared to negotiate private decisions with fifty state legislatures. His is the folly of refusing to recognize the benign effect of abortion rights on the rate of crime in America.

Judicial confirmations can be negotiated settlements. Clement Haynesworth was a reasonably decent nominee to the Court. He was defeated, in part, because Senate Democrats wanted retribution for Lyndon Johnson's failed nomination of Abe Fortas as Chief Justice. Richard Nixon played that by nominating a much less reputable nominee to the Court, G. Harold Carswell. When the President and the Senate had exhausted themselves in the struggle, they both needed a confirmable nominee and that was colorless Harry Blackmun. President Bush needs to learn what Richard Nixon learned by exhaustion. He ought to consult the mind of the Senate in advance of nominations – and send up nominees who are confirmable.

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Irfan Khawaja - 8/4/2006


There was also an article on Blackmun in the NYT magazine a few weeks back by Linda Greenhouse--this was two or three weeks ago. Much more substantive than either Brooks or Garrow. Don't have time to get the reference right now, but it probably isn't too hard to find.

Irfan Khawaja - 8/4/2006

Wow, it's refreshing to read something on abortion I agree with, for a change. You're exactly right. It's not sufficiently appreciated just how tepid Roe vs Wade was when it came to the defense of abortion rights. Blackmun goes out of his way in Roe to tell us that he REJECTS the pro-choice idea of a genuine right of privacy over one's body. So for better or worse (worse, in my view), the compromise element was there in Roe by design right from the start and it gave rise to plenty of "democratic legislation" in the states, almost all of it designed to chip away at abortion rights. So Brooks's claim that there has been "no democratic debate" is simply delusional. He has no idea what he's talking about.

Incidentally, as someone who teaches the abortion issue in continuing education classes to adults, I think I have plenty of "contact" with the people Brooks calls the "working class." I've so far not been able to see why someone's being (anti-abortion + working class) gives them any more insight into the issue than someone's having "non-working-class" origins and a pro-choice perspective. (And it's not as though the "working class" was all steadfastly ranged against abortion, either.) The whole appeal to the "working class" is such a cheap, cynical ploy. Do it consistently, and you're called a Marxist; do it opportunistically and they publish you on the Op-Ed page of the NYT.

Jonathan Dresner - 4/21/2005

I've never entirely understood the "moving too fast creates a backlash" argument: if the movement is really in that direction anyway, then moving "too fast" should simply mean that the rest of society seems to be lagging behind, but are actually progressing more or less normally in the same direction and will catch up, culturally speaking, in good time. The "backlash" isn't, generally, new opposition to whatever progress is at stake, and "regression" or "rollback" rarely goes so far as to return to the point at which "too fast" began.

Now I'm not saying that these things have a "natural order" or that progress happens without real and deliberate effort. But I'm suggesting that the conflicts be viewed in a more nuanced and dynamic fashion.

With regard to confirmations, one could draw a different conclusion from this analysis, I'm afraid: Bush and the Senate have not yet had the knock-down fight that would lead to real compromise, and so we still have that to look forward to before we have all confirmable (under the old rules) nominations (as opposed to the mostly confirmable pro-business types with a few test-case social radicals thrown in nominations we seem to have now)

Rebecca Anne Goetz - 4/21/2005

I just read David Brook's column and came on over here with steam coming out of my ears. I wondered how he could say that there hasn't been a democratic debate on abortion? That debate has been happening since 1973, on a state by state basis as different states put different restrictions in place. The courts have repeatedly decided in favor of states' rights to restrict abortion--parental consent, 24 hour waiting periods, restrictions on second and third trimester abortions, required viewings of videos about abortion, the list goes on and on. (I could also mention here the laws and court decisions that protect the rights of protesters--most of whom are peaceful but some of whom are vicious.) Brooks fell right into the trap of the religious right--that is, making Roe into a boogey man and failing to recognize how the original language of that decision has been consistently watered down by, yes, you guessed it, state legislatures.

You might notice from my tone that I don't support these state laws. I think the constitutional underpinning of the Roe decision was essentially correct. However. Like many pro-choice activists, I see a compromise has already been made that allows states to make certain choices within the constitutional rubric laid out by Roe. It's a messy compromise--like the one Brooks wants--where anti-abortion activists aren't satisfied because the procedure is still legal, and pro-legal abortion activists aren't satisfied, because so many restrictions are in place. It looks like the middle of the road approach Brooks wants.

As far as the judicial confirmations go, thanks for the additional info Ralph. You should write an Op-Ed for the NYT. I think Senators could step back from this if they wanted to. There are plenty of Republicans who are uncomfortable with the nuclear option.