Posted by Jim Lindgren:
Blackmun a Clerk to His Clerks.--
David Garrow�s long-awaited analysis of Justice Blackmun�s papers is
finally up on [1]Legal Affairs. It seems fair, insightful, and
scathing. It appears that Blackmun lacked the talent to serve on the
Court, deferring to clerks much brighter than he was to an extent that
is unacceptable. Further, things got worse in his last few terms (term
limits, anyone?). Garrow depicts how Blackmun sometimes served as
little more than a cite-checker of his clerks' work�a division of
labor that effectively made the judge a clerk to his own clerks.
Some [2]excerpts from Garrow on the role of clerks in Blackmun�s
chambers:
[Clerk Michelle] Alexander gave Blackmun a note that read, "This
morning at breakfast you mentioned that you would like to release
the death penalty dissent by the end of the calendar year. I think
that is wise," because several pending cases offered appropriate
opportunities. In particular, "there is little chance that a better
vehicle for your dissent will come along before the end of the
year" than Schlup v. Delo, an "extraordinary" capital case. In
closing, she stated, "I would love to hear your thoughts."
Schlup was postponed, however, and Alexander reported that she had
reviewed all petitioners with scheduled execution dates. "I
recommend that you plan to release your dissent when Malcolm Rent
Johnson is executed on January 31," she wrote. Alexander once again
concluded her note by saying, "I'd love to hear your thoughts." One
week later, with Johnson's execution indefinitely delayed,
Alexander advised that "[i]nstead of searching for the ideal
vehicle for the dissent, the dissent should be tailored for any
death case," so that it simply could be issued whenever the next
execution occurred. Two days later, she told Blackmun that she had
revised the existing draft to remove the Gary Graham references,
but explained, "I have not altered any of the cites. It is
therefore unnecessary for you to recheck the cites for
accuracy."[WOW!!] . . .
Readers of Alexander's and [clerk Andrew] Schapiro's memos may
rightly wonder who was functioning as a justice, and who as a
clerk. Alexander twice told Blackmun, "I would love to hear your
thoughts" about the opinion, yet her memos suggest that Blackmun
was most concerned with whether he should "recheck the cites."
No public evidence exists that Blackmun experienced the type of
mental decrepitude that marred the final terms of Justices Hugo L.
Black, William O. Douglas, and Thurgood Marshall, as detailed in
several scholarly studies of the justices' lives. Nor is there any
evidence that a clerk ever determined or altered any of Blackmun's
votes in a case, as did occur with Justice Frank Murphy in the
1940s, or that Blackmun ever voted while failing to understand what
he was doing, as Marshall's case files reveal that he did on at
least one occasion. But what transpired in Blackmun's chambers,
especially after 1990, was nonetheless a scandalous abdication of
judicial responsibility. . . .
Blackmun must now be seen not only as a justice who evolved toward
a more compassionate jurisprudence but as a justice who
increasingly ceded far too much of his judicial authority to his
clerks.
Some [3]excerpts from Garrow on the lack of respect for other
justices:
DURING THE 1991 TERM, TWO OF THE DECADE'S PREMIER CASES, Lee v.
Weisman and Planned Parenthood of Southeastern Pennsylvania v.
Casey, came before the court. Clerks Molly McUsic (who is now a
senior fellow at a Maryland-based conservation foundation) and
Stephanie Dangel (who is now a lawyer in Pennsylvania) played
notable roles in both cases. . . .
[On Casey] Dangel confessed that she was "somewhat ambivalent about
what has happened in this case," for while "there is much to be
admired in the formation of the troika and the substance of their
opinion, . . . given the middle ground that they have taken, I fear
the decision may have the effect of removing abortion from the
political agenda just long enough to ensure the re-election of
Pres. Bush and the appointment of another nominee from whom the Far
Right will be sure to exact a promise to overrule Roe." Sketching a
three-part outline, Dangel explained that the specifics of the
third section "cannot be worked out until AS [Antonin Scalia] has
circulated his monstrosity" of a dissent. She explained that "while
there may be something to cheer in the troika's opinion, there is
much more to fear from the right. And the difference between the
two positions is a single vote a single vote that is up for grabs
in the coming election. As you have no doubt gathered, this opinion
is more rhetoric than research."
Dangel concluded by telling Blackmun, "I plan to give you a draft
of this opinion late Thursday or early Friday," but she added, "I
think it is preferable to circulate after the conference on
Friday," since the opinion "should ruffle some feathers on the
right" and it would be "better to give them a few days to cool off
before you have to meet with them again." She gave Blackmun a
partial draft on Sunday, explaining that it was incomplete in part
because "the evil nino [Scalia] has yet to circulate."
Revisions continued during the ensuing week, with Dangel telling
Blackmun that "[t]he one 'substantive' decision you will have to
make is whether you want to go with an ending that links the future
of reproductive rights to the upcoming election (or confirmation
process) in the manner that my earlier draft did. It's pretty
radical. . . ." A day later, Dangel notified Blackmun that she had
changed the ending so that "it now reads less as a battle cry, and
more as a lament," and she followed up with another memo reporting
that a Stevens clerk had said the Blackmun opinion would further
politicize the decision. "I hope you don't feel that we were
pressuring you too much on the final section of this opinion. You
certainly should not include it if you feel uncomfortable," Dangel
wrote. She added, however, that "this is not just about abortion or
this Term," because "the Justices who get appointed in the next few
years are going to make up the Court for most of my life!"
Dangel closed by remarking that "while this is completely
inappropriate, I cannot help [but] be disappointed with JPS [John
Paul Stevens]" both in Casey and in two other cases where he
diverged from Blackmun. "The people of America need someone to tell
them the truth. And, as the author of Roe, I think you're the only
person who can do it." Later that day, Dangel informed Blackmun
that Kennedy had had a clerk pass along his concern about how the
Blackmun draft referred to Rehnquist simply as "the Chief." "While
I have my doubts as to whether he deserves to be call[ed] 'Justice'
on this one," Dangel told Blackmun, "I guess there's no need to
ruffle feathers needlessly."
The partisan politics evident in McUsic's and Dangel's memos should
not have been tolerated by any justice, liberal or conservative,
and no similarly intemperate statements appear in clerks' memos to
Brennan, Marshall, or Powell. In addition, the hostile and
sometimes harshly sarcastic references to other justices--and
Blackmun's failure to stop such comments--appear to indicate that
the justice himself lacked respect for some of his colleagues.
There is [4]much more on Blackmun in the print version of Legal
Affairs. And then Linda Greenhouse�s [5]Bernstein links a story about
Garrow's piece on [6]Law.com.
References
1.
http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp
2.
http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp
3.
http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp
4.
http://www.legalaffairs.org/issues/May-June-2005/feature_garrow_mayjun05.msp
5.
http://www.amazon.com>bookonBlackmun</a>appears%20to%20be%20shipping%20now%20from%20Amazon,%20though%20I%20think%20it%20was%20scheduled%20to%20be%20released%20in%20a%20few%20weeks.%20%20David%20<a%20href=
6. http://www.law.com/jsp/article.jsp?id=1113555914558
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