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.