Blackmun: A Jurist in Search of Justice : Nixon appointee was wise, intelligent and compassionate

“Republicans think I am a traitor and Democrats don’t trust me,” U.S. Supreme Court Justice Harry A. Blackmun said in 1991. “So I twist in the wind, owing allegiance to no one, which is precisely where I want to be.”

Justice Blackmun’s 24-year tenure on the nation’s highest court attests to the power and awesome responsibilities of a Supreme Court justice, who often must temper political ideology with judicial wisdom and compassion. Blackmun, who announced Wednesday that he will retire at the end of the court’s current term in June, was Richard Nixon’s choice to fill the seat vacated by Abe Fortas. Nixon, recoiling at what he and other Republicans regarded as the judicial activism of the Earl Warren court, was determined to ideologically recast the court with his appointments of Warren E. Burger, William H. Rehnquist and Lewis F. Powell Jr., in addition to Blackmun.

But Blackmun was hardly Nixon’s first choice; instead, he was a “safe” compromise, picked in 1970 after the Senate defeated Nixon’s earlier nominations of Clement F. Haynsworth and G. Harrold Carswell. But Nixon nonetheless presented Blackmun as a “strict constructionist” and a “law-and-order” conservative.

In his early years on the court, Blackmun lived up to that billing. But with his majority opinion in Roe vs. Wade (1973), holding as constitutionally protected the right of women to an abortion, Blackmun began to move toward a thinly populated center. And as the justices appointed by Ronald Reagan and George Bush forged a new, more conservative majority in recent years, Blackmun, with Thurgood Marshall and often John Paul Stevens, found himself to be on the court’s left flank.

His most memorable opinions and writings demonstrate that mixture of clear thinking and profound understanding of human nature that has sustained this nation’s legal system through two centuries. His opinion in Roe and his many subsequent dissents as the court moved to systematically undercut the landmark decision are certainly among his best. The pitched battles over abortion in recent decades--battles in which Blackmun himself has been cast as both hero and villain--have overshadowed his evolution as a civil libertarian. Most recently, Blackmun, who once dutifully supported the death penalty, denounced capital punishment as unconstitutional. He eloquently supported the civil rights of desperate Haitian refugees, abused children and gay men and women. Blackmun is not the first justice to have discovered that the court’s ideological terrain had shifted beneath him. Nor is he the first to have recognized that facile ideological constructs of what’s right, fair or constitutional proved inadequate to the complex and often painful choices facing those on the high court. And Blackmun surely will not be the last to come to those realizations. That presidents try to recast the court in their own ideological images is almost a truism; that they ultimately fail to do so is another.

If his first Supreme Court appointment, Ruth Bader Ginsburg, is an indication, President Clinton seems to understand this. Blackmun’s retirement hands Clinton a second opportunity. Given Blackmun’s remarkable change over the years, the President’s choice is unlikely to dramatically shift the court’s ideological balance. But again there will be a test of Clinton’s commitment to appoint men and women who are, above all, wise, intelligent and compassionate.