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Perhaps even before this review appears, but certainly within the next months, President Bush will receive the opportunity to make one of the most critical decisions of his presidency. A Supreme Court vacancy seems almost definite, and it will offer the President an opportunity to have a lasting impact on the future of the law in America. The President probably has a name in mind, but one can only hope that before he makes such a monumental decision he would take the time to read BECOMING JUSTICE BLACKMUN: Harry Blackmun's Supreme Court Journey, by Linda Greenhouse. It would be time well spent.
Ms. Greenhouse has covered the Supreme Court for the New York Times since 1978. In 1998, she was awarded a Pulitzer Prize for her reporting on the Court. In March of 2004, under the terms of Justice Blackmun's will, his personal and official papers were made available to the public. Justice Blackmun served on the Court until 1994 with many of the Court's current members. The insights and views he expressed in his papers offer a remarkable view of the Supreme Court, its members and the rule of law in American society. This book is not a biography of Harry Blackmun. More accurately it is a portrayal of a journey that one man traveled over his 24 years of service to the Court and to his country. Justice Blackmun grew and changed during his court tenure. From Linda Greenhouse we learn how and why the man who retired from the bench in 1994 was so different from the man who wrote out a list of pros and cons in 1970 to help decide whether or not he should accept the position of justice of the U.S. Supreme Court.
The current battle over judicial nominations has been a festering sore in American politics since the days of Richard Nixon. Blackmun, through no fault of his own, played a prominent role in that imbroglio. Blackmun was Nixon's third choice for a vacancy on the court that arose in 1969 when Justice Abe Fortas left the court following a scandal that focused on fees accepted for work done outside his judicial duties. True to his 1968 campaign pledge to select "strict constructionists," Nixon chose two conservative southern jurists. Both were defeated in bitter confirmation battles. Nixon then turned to Minnesotan Harry Blackmun who was serving on the Eighth Circuit United States Court of Appeals. Blackmun also had been a lifelong friend of Chief Justice Warren Burger. Their friendship and initial common decisions on cases earned them the nickname of "The Minnesota Twins." Both the nickname and the friendship would soon be shattered.
BECOMING JUSTICE BLACKMUN discusses a wide range of Blackmun's jurisprudence. Two areas of the law warrant extended discussion in this limited review. First and foremost is Blackmun's decision in Roe v. Wade, the abortion decision that made him a hero in the eyes of some and earned him the enmity of others. Roe became Blackmun's bete noir in the same fashion as many individuals whose lives are marked by one act. But Roe was not Blackmun's decision alone. It was the work of several judges whose thoughts, notes and suggestions are all documented by Greenhouse. To read her account is to understand how Supreme Court decisions are reached by discussion, compromise and legal give and take. In contemporary society, where judicial decisions often result in histrionic name-calling, the lesson of Roe should be trumpeted; sadly it is ignored.
Blackmun became a defender of Roe and later in dissent he would express a belief that showed how his court tenure had changed him as an individual. He wrote, "There is a world 'out there,' the existence of which the Court, I suspect, either chooses to ignore or fears to recognize…. This is a sad day for those who regard the Constitution as a force that would serve justice to all evenhandedly and, in so doing, would better the lot of the poorest among us." Sadly, our current Supreme Court seems not inclined to deal with the real world and the impact of its decisions on real people.
Decisions in death penalty cases also exemplified the journey of Justice Blackmun. Originally he voted to support the reinstitution of capital punishment in state courts across the land. But years of confronting a legal system unable to fairly prosecute and sentence criminal defendants to death ultimately forced Blackmun to confront the fact that the system could not operate in a fair and just manner. In 1994, Blackmun renounced support for the death penalty. "From this day forward, I shall no longer tinker with the machinery of death." Blackmun was a prophet. His concerns and quarrels with capital cases are today being confronted in state after state, as multiple problems with capital murder trials are unearthed on a regular basis.
The exhaustive historical biography of Harry Blackmun is probably years or decades away from publication. Nevertheless, Linda Greenhouse has provided readers desirous of understanding judicial philosophy and growth with a wonderful saga of a jurist who was not afraid to reexamine his views and philosophy in an ever-changing world. Our Constitution is a stronger document for having been interpreted by Blackmun. Sadly, we will not see others like him unless our politicians come to understand the importance of a living judiciary.
--- Reviewed by Stuart Shiffman
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