Transcript

HAROLD HONGJU KOH: This is the Justice Harry A. Blackmun Supreme Court Oral History Project, session number four.

It's being filmed on October 21st, 1994, at the Federal Judicial Center in Washington, D.C. My name is Harold Hongju Koh.

I'm a professor at Yale Law School, and I'm a former law clerk to Justice Blackmun and the interviewer for this project.

Mr. Justice, when we concluded last time, we had just finished talking about your years at Harvard College.

The subjects today are your years at Harvard Law School and then your early professional life in Minnesota.

I should start by asking when did you decide to go to law school?

JUSTICE BLACKMUN: Well, going to law school I guess was always something that was in the background.

My father had always wanted to go to law school and never realized his ambition, although we had a number of law books that he purchased and which I have in my chambers.

So he wanted me to go to law school and for me the choice was between law and medicine, and I think one often went to law school in those days on the theory that it didn't do you any harm if you... whatever you wanted to do... if you had a legal education.

I just kind of drifted along and went to law school.

HAROLD HONGJU KOH: As a college student, did you visit any Harvard Law School classes?

JUSTICE BLACKMUN: No.

I could see the law school students walking around the yard, some of the other places, with those green bags, holding huge books that seemed to be rather baffling.

HAROLD HONGJU KOH: When you applied to law school, did you apply anywhere other than Harvard?

JUSTICE BLACKMUN: No.

HAROLD HONGJU KOH: And do you remember anything about the application process?

JUSTICE BLACKMUN: No, very little, I didn't, there didn't seem to be any difficulty in getting in, it wasn't the way it is today.

I had acceptable grades as an undergraduate, and there didn't seem to be any trouble.

HAROLD HONGJU KOH: On the first day of law school, did they give a speech about look to your left and look to your right?

JUSTICE BLACKMUN: Well that's the old Bull Warren story, Professor Bull Warren who always apparently told that to the students.

My first class was with Calvert Magruder, on torts, and he later went on the First Circuit.

As I recall, he told that story giving full credit to Professor Warren.

It was a great way to start law school when you realized that one of the three of you wouldn't be there next year.

Frighten them at the start and keep them frightened I guess was the theory.

HAROLD HONGJU KOH: And were you frightened?

JUSTICE BLACKMUN: Not any more than anybody else,--

[Laughter]

wondering whether you could handle the legal subjects.

HAROLD HONGJU KOH: And who were your first set of professors, do you remember?

JUSTICE BLACKMUN: Yes, pretty well.

As I just mentioned, Magruder was the first class.

And in that year Williston in contracts, Morgan, a new professor named Paul Sayre and another one of the same name, Francis Bowes Sayre, who was Woodrow Wilson's son-in-law and wore a high collar, that seemed to pinch into his chin all the time.

He had only one question to ask.

He'd say,

"Mr. Brown, will you state such and such a case. "

He did and then Sayre would say, "Is that decision sound"?

That was the way he started every Socratic dialogue, so called, I remember it very well.

HAROLD HONGJU KOH: Do you remember the first time you were called out in class?

No.

JUSTICE BLACKMUN: Were there all men at the time, or were there any women?

If there were women, there were very few, and I think there were all men at the time.

HAROLD HONGJU KOH: Who was the dean of the law school at that time?

JUSTICE BLACKMUN: We had a couple of deans as I remember, more or less in an acting capacity.

Morgan was there for a while, Landis took over and Griswold had not yet come on the horizon as dean, but did within a year or two.

HAROLD HONGJU KOH: Right, you mean Edmund Morgan and Erwin Griswold.

What are your impressions of some of these people, if I could just ask you to give brief impressions?

You mentioned James Landis, what was your feeling about him?

JUSTICE BLACKMUN: Well, he was on his way up, of course, and was rather an understudy to Williston.

Very nervous, high strung individual who had a Phi Beta Kappa key which he wore over his belly.

He loved to twirl it as he came in and enunciated the philosophy of the law.

But most of the classes in that course were taught by Williston whom everybody loved and highly regarded.

It was hard for Landis, I think, to step in on occasion and be there when Williston was not available.

But Williston, of course, was a great name in contracts at the time, soft-spoken, had a habit of calling the offerer and the offeree Oscar and Edward, respectively.

He never referred to an offerer or an offeree, it was always Oscar and Edward.

I think we thrived in Williston's classes.

HAROLD HONGJU KOH: What was Magruder like?

JUSTICE BLACKMUN: Magruder was a little more cold.

Impressive.

Good teacher.

I think knew his subject... I took torts from him.

Later he got into the political arena and eventually ended up on the Court of Appeals for the First Circuit, became chief judge of the First Circuit at one time,--

HAROLD HONGJU KOH: And Morgan, what was your impression of him?

JUSTICE BLACKMUN: --Eddie Morgan.

I, of course, was particularly interested in him because he had Minnesota roots.

He had practiced at Duluth at one time.

His course on evidence was something to behold.

It was not easy, there was no humor in Professor Morgan, but in effect, I think he exerted on the class a trial lawyer's approach, and I think we learned a lot.

But for me it was a difficult subject.

I found evidence difficult.

Another one, of course, I should mention is Austin Scott because, for moot court competition, I was in the Scott Club named after him.

Scotty was very popular and taught trusts.

We got to know him as well as anybody.

HAROLD HONGJU KOH: Can you tell us about that moot court experience, it was probably your first litigation experience, right?

JUSTICE BLACKMUN: In those days, I have no reason to know whether it's changed there at Harvard, but if you wanted to go up for moot court arguments, one did.

You start off as a pair, one arguing against the other, and then the next round I think there were four of us and then finally there were eight of us.

Eight from each class were in the so-called Law Club which was nothing social at all.

Then we would engage in inter-club competition which would last into the fall of the third year.

It was an elimination tournament and we were lucky enough to win that competition our year.

HAROLD HONGJU KOH: Did you argue?

JUSTICE BLACKMUN: Not in the final round.

There were only eight of us.

The two oralists in that round were Frank Sloss, who was a Stanford graduate, and Thomas Hopkinson Eliot, a grandson of President Eliot of Harvard, who was among the eight of us.

The rest of us wrote the brief and formed the cheering section.

HAROLD HONGJU KOH: Do you remember what the case was about or who the judges were?

JUSTICE BLACKMUN: I guess I better give you a negative answer on both of those.

I have those old briefs at hand but I don't remember precisely who the judges were... I should know.

HAROLD HONGJU KOH: Who were your best friends in law school?

JUSTICE BLACKMUN: Well, it turned out members of that group of eight.

There wasn't much socializing in Harvard Law in those days, and I was working my way through anyway.

I would say my best friend was Russell C. Jewell.

He had practiced a while in New York City, lived in Scarsdale, graduate of Yale, little bit older than I was because he had been out working for three or four years in between college and law school.

He was a close friend, I had the highest respect for him.

After law school, he went on to Donovan Leisure in New York and ended up being counsel for American Cyanamide Company.

Another one, of course, was Tom Eliot whom we all liked and teased constantly because Tom was always so positive in his views but a very able fellow and eventually became Chancellor of Washington University in St. Louis where another Eliot had preceded him in that chair some years before.

HAROLD HONGJU KOH: Where were you living during this period?

JUSTICE BLACKMUN: The first year in Perkins Hall, which is fairly near the law school but is not a law school dormitory.

It really was a graduate school dormitory, and my roommate, whom I'd known in college was going on in mathematics and eventually did make mathematics his life work, became chairman of the math department at Michigan State.

We lived there for one year and then rather an amazing thing happened, I guess, Lowell House at Harvard opened up in 1930.

This was the first of the Harvard houses.

Professor Julian Coolidge, who had been appointed master of that house, had the idea that he should have one representative of every graduate school in the house, which otherwise was composed of undergraduates.

My then roommate came down, he was a representative of the graduate school, as I was of the law school, there was somebody there who was in medical school and somebody else from business school.

I don't know whether it worked out all right, but it enabled me to live in the new Harvard house when it was first opened.

Of course, my friends from the Scott Club at law school thought I was crazy because I was down there in an undergraduate atmosphere and couldn't engage in bull sessions far into the night up around the law school.

But it was a happy time, I enjoyed being there.

HAROLD HONGJU KOH: Now you said that you were continuing to work your way through.

Was that unusual or were significant numbers of students working?

JUSTICE BLACKMUN: There weren't too many.

It was just the circumstance that I had to face, and by the time I got in law school, I had things fairly well under control in the sense that I had pretty good jobs.

One was running the coaching launch for the Harvard freshmen crew and that got me outdoors on the river everyday.

Another one, which paid fairly well, was correcting math papers for a professor of mathematics.

HAROLD HONGJU KOH: Did you do that when you were in law school?

JUSTICE BLACKMUN: Yes.

Those two were the main things that got me though, as long as I worked... and I finally realized, I should have realized it long before, that working this way was affecting my grades.

I had passable grades, all right, but... so I gave up those jobs, the last year in law school and got a better grade that year.

HAROLD HONGJU KOH: How many hours a week would you say you worked?

JUSTICE BLACKMUN: I was on the river, usually, or down near the boathouse, from one until seven, which is six hours, and correcting math papers always took me three to four hours.

HAROLD HONGJU KOH: How did you like your studies, did you find them enjoyable or oppressive or somewhere in between?

JUSTICE BLACKMUN: I liked the math studies very much, but I reached the point where I turned down my roommate's suggestion that I continue in math as he was going to do and make a career out of it.

I felt I had reached the limit of my intellect to absorb any further mathematics.

I may have told you the other day that I wrote a thesis, an honors thesis, in math as a senior.

I took it out the other day and couldn't understand the first two sentences.

It was a little bit beyond me.

HAROLD HONGJU KOH: Did you ever go to medical school classes to see what they looked like?

JUSTICE BLACKMUN: No.

And I suppose the problem was the medical school was downtown Boston and I didn't get down there.

HAROLD HONGJU KOH: How did you feel about law school classes.

Were they enjoyable, the reading enjoyable or did you find it hard to get adjusted to it?

JUSTICE BLACKMUN: They were certainly very different from the undergraduate classes in Harvard College, particularly the math classes.

They were large classes.

One had a seat assigned.

As I remember, we sat in half-circular rows.

Each professor was largely didactic in his teaching, in those days.

We didn't have very many small classes.

I sensed immediately when I got up there a different kind of atmosphere from that which had prevailed at Harvard College.

I think it was due to a couple of things.

One was the fact that the students came from all over.

My senior year at Harvard College, we'd all been around for three years and we were more or less of a type, but up there they came from every conceivable college and were sharp.

The second distinction I noticed, and I noticed it right away, was that it was all business at that time.

We were now in a professional school and studying the basic art of a profession and it was competitive.

It was not the old college days anymore.

HAROLD HONGJU KOH: How did you become known as "Black Horse Harry"?

JUSTICE BLACKMUN: I had a lot of nicknames.

Professor Leach one time couldn't read his chart very well--

HAROLD HONGJU KOH: --you mean Barton Leach--

JUSTICE BLACKMUN: --and he came to my name and called me "Blackhouse".

And, of course, the obvious next step for my good friends, so called, was "Backhouse" and I endured that for a while.

HAROLD HONGJU KOH: --One person we haven't discussed is Felix Frankfurter.

Did you take any classes with him?

Was he a big presence in the school?

JUSTICE BLACKMUN: He was a big presence in the school, and I did take his course on public utilities, so called, which didn't have very much to do with public utilities but it had to do a lot with the practice of law.

Felix would take... we'd call it the case-a-month club, and he'd take a case and start with the filing of the complaint and he might take five weeks to go through the case and its development and its final decision-making process.

I think we wondered at the time whether this was worthwhile.

I sensed a feeling of antagonism toward Professor Frankfurter at the time for a couple of reasons, he was always very positive in his position, almost arrogant, and you know how law school students are, they don't like that very well.

The other was, a feeling, probably not rightly adopted, that he played favorites among students.

He'd get about ten or twenty and put them up in the front row and his Socratic dialogue was always with those particular students and not with the rest of the common people or, those of us who sat in the back rows.

As I got into practice and particularly on the bench, my admiration for Felix Frankfurter has definitely increased.

I never find the Frankfurter opinion that's close to the mark on whatever I'm working on that is not helpful.

May not always agree with it, often do not, but all the substance is there.

In retrospect, I have to feel that Felix was one of the great teachers there without any doubt.

HAROLD HONGJU KOH: Did you have any personal interaction with him?

JUSTICE BLACKMUN: A little.

He never called me by my first name, he never did, he always called me "Blackmur", M-U-R.

We used to have Scott Club dinners, once in a while and he was a favorite invitee to have.

We could get him going into some things that he regretted the next morning, but it was all right.

HAROLD HONGJU KOH: Did you stay in touch with him at all when you went on to practice?

JUSTICE BLACKMUN: A little.

I was presumptuous enough to write him now and then about cases that I thought he would find interesting.

He always answered, politely, with deference, and I enjoyed that little correspondence I had... I have it all somewhere, I don't know exactly where it is.

Yes, I kept more in touch with him than with some of the others.

HAROLD HONGJU KOH: From whom did you study Constitutional Law?

JUSTICE BLACKMUN: Thomas Reed Powell, who was as dogmatic as anybody could be and it was in Austin Hall where he held forth and I don't remember too much about it.

I, of course, have my notebooks in my store room here.

Someday I'll look at them, see what they look like.

It was not my favorite class.

Maybe my favorite class was one with Barton Leach, who taught property.

He got himself in difficulty one time with the faculty, but I learned a lot from him.

HAROLD HONGJU KOH: Did you take a course in Income Tax?

JUSTICE BLACKMUN: No, I did not.

Everybody avoided it in those days.

They didn't think it was very important, and they thought it'd be dull.

The first of which was untrue, the second of which was probably correct.

Then, of course, a few years later in practice I found myself assigned to the tax department.

It was a day of revelation.

I wished, at that point I had taken tax law.

HAROLD HONGJU KOH: So that was not a field that you were leaning toward in law school.

JUSTICE BLACKMUN: No, not at all.

HAROLD HONGJU KOH: During this period, this was in the Depression and coming up on prohibition.

How did these events affect your life?

JUSTICE BLACKMUN: Well, it certainly was the Depression all right, and it affected everybody.

On the other hand, students from rich families were well off and it didn't bother them too much.

I may have said in the earlier interview, I can well remember Black Friday in October 1929, walking up to Harvard Square, going somewhere, maybe the law school probably, and the newsboys were hawking their papers as they did in those days, "Stock market crash", and I said smugly to myself,

"I don't have any money, I'm broke, it just can't hurt me at all. "

and congratulated myself on how lucky I was, but again, how wrong I was because it affected all of us, those days.

HAROLD HONGJU KOH: And did you have much interest in national politics at the time?

I know you met Herbert Hoover during those years,--

JUSTICE BLACKMUN: I was always interested in politics.

I was never active in them, but I was always interested in how they operated, who was elected, and what the trends were.

I just happen to have met Mr. Hoover shortly after he was sworn into office because my first trip to Washington was with the Harvard Glee Club and we went down and sang at the White House, and he came out and had a photograph taken with us.

HAROLD HONGJU KOH: --Was he still reasonably popular then?

JUSTICE BLACKMUN: Oh, yes indeed.

This was in '29, before the crash.

He was a great man in many respects.

He had a pretty bad deal being president when the Depression hit us, but he certainly did a lot of good in this world in the years before that.

HAROLD HONGJU KOH: What would you do during the summers in between your law school years?

JUSTICE BLACKMUN: I thought for a while of staying in the Boston area and working, but my father's health was not too good and I always went home.

In one of those early trips, I was still an undergraduate, I got a job peddling milk, driving a milk wagon, and I carried this through.

I was able to get it every summer.

They'd use me as a substitute.

They had to give vacations to the regular drivers, so I would take over when they were on vacation.

HAROLD HONGJU KOH: So in those days, law students had no prospect of working for a law firm.

JUSTICE BLACKMUN: Not at all.

I can't remember a single one who worked for a law firm during the summer.

HAROLD HONGJU KOH: Who were some of the well-known people in your law school class or who were in the law school during your time there... students who went on to become well-known lawyers?

JUSTICE BLACKMUN: Our class was not particularly distinguished in that way.

Telford Taylor was a member.

They all did very well in the practice of law, but there was no one who went into the political arena and became well known in that respect.

HAROLD HONGJU KOH: You mentioned in an earlier session when you first saw Justice Holmes at the law school.

Did you see or meet any other famous judges?

JUSTICE BLACKMUN: No, not then.

Of course, there was always a lot of talk at Harvard about the Hands, both of them, Learned and Augustus.

HAROLD HONGJU KOH: Do you remember what the case was about?

JUSTICE BLACKMUN: No.

It had something to do with a negative approach in certain types of administrative law.

We had a new approach to it.

He didn't think much of it.

HAROLD HONGJU KOH: Were you the oralist?

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: And was he actually mean to you?

JUSTICE BLACKMUN: No, no, he was just firm.

He didn't say,

"You Mid-Westerner, get out of our bailiwick here in New York. "

But I knew when he made up his mind.

HAROLD HONGJU KOH: Did you have any recollections of famous sporting events during this period, I know this is right after the great Yankee teams and Babe Ruth.

Did you have any contact with them or go to see any of the games at Fenway?

JUSTICE BLACKMUN: Yes, I got over to Fenway once in a while if I had money to get in.

But there was one time I remember.

After our final Scott Club argument we had won, we decided to go down to Fenway Park the next afternoon.

The eight of us went.

The Yankees were in town.

There couldn't have been 900 people in the ballpark that day, but there was The Babe and Lou Gehrig, of course, and some of the others.

It was a great day.

HAROLD HONGJU KOH: Were you discouraged that you weren't on the law review?

JUSTICE BLACKMUN: No, I accepted the fact that my grades weren't good enough, they were-close.

I rationalized it by saying I'm working my way through, which may or may not have been accurate.

I think that was worth maybe three to five points.

HAROLD HONGJU KOH: Were you able to have much of a social life apart from your work?

JUSTICE BLACKMUN: No, not very much but I had some.

I think one had to get out a little bit.

HAROLD HONGJU KOH: When you came back in 1994 and got an honorary degree at Harvard, did you have any memories of this period?

Did it somehow bring you full circle from these years at Harvard?

JUSTICE BLACKMUN: Well, you've described it well when you use that phrase, because a lot of things came full circle, I think.

Yes I did have a lot of memories.

Being there at Harvard Yard again brought many things back, as they often do when I'm up there.

But this one in particular because it was commencement, a beautiful day and a great crowd.

I think some twenty-plus thousand people were there at commencement.

HAROLD HONGJU KOH: Did your parents come to your commencement?

JUSTICE BLACKMUN: Yes, they did.

HAROLD HONGJU KOH: Did you think about how they would have reacted to seeing you get this honorary degree?

JUSTICE BLACKMUN: Oh, well, I think they would have been pleased maybe, my mother particularly.

Long time ago.

HAROLD HONGJU KOH: During this period, did you have any serious thoughts about pursuing any profession other than law?

Or were you fairly certain that you would continue as a lawyer?

JUSTICE BLACKMUN: Yes, I think as time went on the thoughts about medicine dimmed, necessarily, because if I wanted to move over to medicine I would have to go back and take some basic science and debts were beginning to mount up that last year particularly, and I was concerned and drifted along in the law and stayed there.

HAROLD HONGJU KOH: As we're coming to the end now of your third year of law school and you started thinking about your future after law school, what kinds of choices were you weighing?

JUSTICE BLACKMUN: Well, there weren't any jobs, of course, freely available.

The big firms weren't hiring ten or fifteen new associates to try them out and maybe hold on to five of them after four or five years.

I was pretty well-reconciled to the fact that I had to go to a small town, hang up a shingle and go through the usual starvation process that one did.

Then to my amazement, as I recall, I had kind of a promise of a job with a Boston lawyer and it wasn't firm by any means.

HAROLD HONGJU KOH: How did you meet this person?

JUSTICE BLACKMUN: Oh, went around, I was going into the Boston firms, seeking interviews, finding out what the situation was.

But then as I said before, my father's health was not good, and I went back to see how things were going, and while I was back in the Twin Cities, I was able to wangle a clerkship there with Judge Sanborn of the 8th Circuit and so there I stayed.

HAROLD HONGJU KOH: Have you ever thought about how your career would have evolved if you had stayed in Boston?

JUSTICE BLACKMUN: I've often wondered about it.

HAROLD HONGJU KOH: What do you think would have happened?

JUSTICE BLACKMUN: I haven't the least idea.

Probably would've ended up in a small town in Massachusetts somewhere.

HAROLD HONGJU KOH: One other question I should ask before I move on, do you remember what your tuition was at Harvard?

JUSTICE BLACKMUN: I don't remember what it was in law school but the first year as an undergraduate, this would be 1925, it was three hundred dollars.

That was just tuition.

HAROLD HONGJU KOH: And what were you making an hour at your jobs?

JUSTICE BLACKMUN: The launch-driving job, which was a good one, three dollars a day, that was fifteen dollars a week, and I could eat on that and do a few other things.

HAROLD HONGJU KOH: Let me ask one final question about constitutional law, the subject.

At the time it was a very different subject.

It was really more about the commerce clause than about individual rights.

Did you have a sense of it as a field?

Did you have a sense of your own philosophy of constitutional law as a young student?

JUSTICE BLACKMUN: No, not really, you're entirely right.

I think Thomas Reed Powell taught the commerce clause.

Individual rights, I have very little recollection of his ever moving on to that.

I have to dig my notes out and see if I'm wrong in that recollection.

HAROLD HONGJU KOH: Could you tell us about Judge Sanborn, his family, his background, and then how you came to meet him for the first time?

JUSTICE BLACKMUN: John B. Sanborn, of course, is a person whom I revere in memory.

The Sanborn came out of New Hampshire and I think in Southern New Hampshire there's still a place called Sanborn's Hill.

He was a person of substance and repute in the St. Paul area.

The family had moved west.

His father was the Colonel of the Fourth Minnesota in the War between the States, later retired as a General.

His cousin, also with the Sanborn name, was a lawyer practicing in St. Paul.

So they were an established family.

He was appointed to the federal district bench in 1925 after a few years on the state district bench in Ramsey County, Minnesota, which is St. Paul and was elevated in 1932, I think in February, and I finished law school in June.

HAROLD HONGJU KOH: How old was he at the time?

JUSTICE BLACKMUN: Oh, I'm guessing, maybe late forties.

HAROLD HONGJU KOH: And had he been in private practice before he went on the state bench?

JUSTICE BLACKMUN: Yes.

And had been somewhat politically active, not running for elected office necessarily but he was Chairman of the Minnesota Board of Tax Appeals and a member of the Minnesota Insurance Commission, that kind of thing.

He was active there and had a lot of friends.

He had a great judicial reaction to things.

He and Mrs. Sanborn had no children so that the name Sanborn in his line died out with him.

HAROLD HONGJU KOH: When we were looking around the walls of your chambers in the first session there was a picture, of Walter Sanborn.

What was the relationship between Walter and--

JUSTICE BLACKMUN: They were first cousins strangely enough, but a generation removed.

Walter Sanborn was one of the three original judges of the 8th Circuit appointed in 1891 when the Courts of Appeals were formed.

And I think John B., his cousin, thought he was a great judge.

Walter Sanborn was fairly liberal, strangely enough, for the Upper Midwest in those days.

But when John Sanborn died the chief judge of the 8th Circuit had a little eulogy, which is printed in F. 2d somewhere, referring to the fact that the 8th Circuit always had a Sanborn overtone to it until the death of John B. which is certainly true because John came on the court shortly after the retirement of Walter.

HAROLD HONGJU KOH: --Do you know if Walter played any role in John's appointment?

JUSTICE BLACKMUN: I do not know that John, I think, was the last, well that would be as a district judge, as a circuit judge he was the last appointee, I think, of Herbert Hoover in 1932.

How that happened I don't know.

HAROLD HONGJU KOH: Was it common at the time for members of your law school class to be law clerks?

JUSTICE BLACKMUN: No, there were not over three or four that did.

There usually was one for Learned Hand and another for Gus.

They were prized positions to obtain if one could get them.

And nearly always they were dictated by Felix who knew the Hands and took the bright boys out of the front row of his class and said to the judges, "Here's somebody you want".

That's why I looked around.

Two of the lawyers on the Minnesota Harvard Club Committee that originally sent me to Harvard College suggested that I go see John Sanborn, because he'd just been appointed to the appellate court and didn't have a clerk and was entitled to one.

So I went to see him.

HAROLD HONGJU KOH: Were there other Minnesota graduates in your Harvard Law School class or were you almost the only person from Minnesota?

JUSTICE BLACKMUN: No, I wasn't the only one but there weren't many.

There was Henry Cutler of St. Paul, John De Laittre of Minneapolis, maybe one or two others.

HAROLD HONGJU KOH: And when you first went to see John Sanborn, how did he treat you?

JUSTICE BLACKMUN: Well, he was, of course, polite but said he could get along without a clerk and that times were rough and the government was strapped for money and it was nice meeting me but he wasn't interested.

So I pestered him.

I went back a couple of times.

I think by that time he'd been far enough into being a circuit judge that he thought maybe he could take somebody on.

HAROLD HONGJU KOH: Did you say anything in particular that you think swung him over?

JUSTICE BLACKMUN: I don't think so.

I know I was paid [dollar] 150.00 dollars a month and very shortly after that F.D.R. was in the presidency and issued an edict reducing federal salaries by fifteen percent.

This was Depression times.

Of course, my hundred and fifty went down to about a hundred and twenty-five at that point.

The judge thought this was hilarious because he couldn't be touched, the Constitution said that his salary, which was [dollar] 15,000 dollars, that's what a circuit judge got in those days.

But he was very decent about it and was always very nice to me.

HAROLD HONGJU KOH: Did you take the bar examination before you went to work for him?

JUSTICE BLACKMUN: Yes, yes, I did.

I arrived in Minnesota on a Saturday and took the bar on a Monday.

Again I had to rationalize a little because over the weekend I looked at the books and found out what the rule against perpetuities was and the statutes of limitations, but otherwise I didn't prepare for it, but convinced myself that I probably would flunk it and if I did there wasn't any harm done and I shouldn't excoriate myself for it but fortunately I got by.

HAROLD HONGJU KOH: What would you have done had you not gotten the position with Judge Sanborn?

Would you have signed on with a firm in Minneapolis?

JUSTICE BLACKMUN: There weren't any jobs.

I think I would have looked around Minnesota and found a good county seat town and gone out and starved for a couple of years, join everything and see how it worked.

HAROLD HONGJU KOH: Where did Judge Sanborn keep his chambers?

JUSTICE BLACKMUN: In those days, the old federal post office up there on Rice Park, it's now called Landmark Center, was where the federal courts in St. Paul were located.

There was a post office on the ground floor but then there was a large atrium and around the balcony on every floor there were chambers for district judges and for Judge Sanborn as a Circuit Judge.

Room 304, I'll never forget it.

HAROLD HONGJU KOH: He was the only Circuit Judge in the courthouse?

JUSTICE BLACKMUN: Yes, he was.

The old chambers for Walter H. Sanborn were up on the fourth floor but he didn't occupy those.

They weren't occupied at all until I used them when I went on the Court of Appeals and happened to be in St. Paul.

They assigned them to me.

HAROLD HONGJU KOH: Can you talk about the other judges on the Court of Appeals at the time?

JUSTICE BLACKMUN: Yes, as I remember, and I hope I'm right in this, the chief judge at that time was Kimbrough Stone of Kansas City.

Kind of a cold-natured, but, I think, good judge.

He was a son of a Missouri senator.

And a judge named Arba Van Valkenburgh of--

HAROLD HONGJU KOH: Kansas City as well.

JUSTICE BLACKMUN: --Kansas City also, who retired about that time.

William S. Kenyon of Iowa.

Kenyon was a large, white-haired fellow who had been a United States Senator, actually, from Iowa.

Archibald K. Gardner of Huron, South Dakota, whose specialties, aside from law, he later became chief judge, we called them Senior Judges in those days, but he loved pheasant hunting and duck hunting and was an ardent hunter in that respect.

Then I think, came John B. Sanborn--

HAROLD HONGJU KOH: Wilbur F. Booth was also of that period.

JUSTICE BLACKMUN: --Wilbur F. Booth is the Minnesotan whom John Sanborn succeeded and had been a district judge in Minneapolis and very popular, nice, quiet guy.

Good judge,--

HAROLD HONGJU KOH: Now did these all have law clerks as well?

JUSTICE BLACKMUN: --The active ones did.

Booth didn't.

The others had a single law clerk, yes all of them.

HAROLD HONGJU KOH: How did Judge Sanborn use your services as a law clerk?

This was his first experience having a law clerk.

You must have had to set up some protocols or procedures.

JUSTICE BLACKMUN: Initially he wrote his own opinions on yellow legal pad, I can see him there grinding them out.

He didn't know how to use me, and I didn't know how to act, but I wrote a few bench memos, and pretty soon he let me draft some opinions.

We worked pretty well together.

In those days, we didn't travel with the judge.

The government was strapped for money, and there was a promise that once during the year we could go to St. Louis for the term.

I tried to help him get prepared, and he'd go down, and we got those opinions out.

HAROLD HONGJU KOH: What was the caseload at the time?

JUSTICE BLACKMUN: We thought it was heavy, as judges always do.

I can't give you figures about it, but the calendars were full and usually we sat in St. Louis, once, rarely, once in a while in St. Paul.

The statute said that the 8th Circuit should also sit in Omaha and Kansas City, but usually we pretermitted those terms.

HAROLD HONGJU KOH: And did you have relationships with the other 8th Circuit judges as a clerk to Judge Sanborn?

Did you have a chance to meet them?

JUSTICE BLACKMUN: Yes, I got to meet all of them and enjoyed that relationship.

A couple of times I was loaned by Sanborn to one of the others when maybe his law clerk was ill or something.

Particularly A.K. Gardner I came to know well.

HAROLD HONGJU KOH: What do you recall about the sittings that you attended in St. Louis, were they exciting for you?

JUSTICE BLACKMUN: Of course they were.

We usually ran two panels, and it was a big deal whether we sat in the big courtroom or in the little courtroom.

I think the clerks all felt it was, matter of dignity if one sat in the big courtroom but it was a lot more intimate and better to be in the smaller courtroom.

Usually we sat on the side where a jury normally would be.

That is, we clerks did.

It was a lot of fun.

HAROLD HONGJU KOH: Do you remember any cases from your term when you started with Judge Sanborn in '32?

JUSTICE BLACKMUN: Starting in '32 and going all through '33.

The one that comes, to mind right away is the Standard Oil case.

The Standard Oil antitrust case originated in the 8th Circuit, oh back, shortly after the turn of the century is when they broke up the Standards into various smaller corporations and that decree, of course, still holds to this day.

Standard of New Jersey came in with a petition to modify the decree to enable them to use the name Standard Oil, which had been denied them in the original decree and as I recall this was denied and the result was that Standard of New Jersey thereupon adopted the trade name Exxon and used it ever since.

Oh, Esso, Esso, yes.

HAROLD HONGJU KOH: Did you know much about the 8th Circuit before you went there to clerk?

JUSTICE BLACKMUN: No, not a great deal.

HAROLD HONGJU KOH: You once said that it's one of the very few North-South circuits.

What do you mean by that?

JUSTICE BLACKMUN: Well, originally, that is, up until 1929, it was the largest circuit geographically in the country.

It covered more than a third of the nation's geographical land, so to speak.

I think it was important and well-known among the circuits, largely because of the influence of Walter Sanborn.

Then it was broken up and the 10th was carved out of it in 1929, just three years before my clerkship started so that at that time we had a lot of background from the larger circuit, and the 10th Circuit, I think, regarded 8th Circuit opinions as almost binding on them until they built up their own body of law.

I can remember some of those early 10th Circuit judges too.

HAROLD HONGJU KOH: Who are the ones who stick in your memory?

JUSTICE BLACKMUN: Judge Lewis primarily.

But they'd been members of the 8th Circuit and were carved off along with the geography.

HAROLD HONGJU KOH: Did you actually meet them?

JUSTICE BLACKMUN: Yes, sure.

HAROLD HONGJU KOH: How did they happen to come down to Minneapolis?

JUSTICE BLACKMUN: They went to St. Louis, I suppose for judicial conferences.

I can't answer your question specifically as to how did they happen to come down, but there was a lot of personal friendship among them, so we got to know them.

HAROLD HONGJU KOH: What do you think you learned from Judge Sanborn about being a judge?

JUSTICE BLACKMUN: Well he was as non-political a person as I've ever known.

I think he tried to instill in me a desire to be primarily just a good judge more than anything else.

He called the shots as he saw them.

Worked hard at it, liked it and was liked, I think, by the bar generally who thought a lot of him because he mixed and mingled with them all the time, went to lunch with them.

He was particularly nice to me.

I don't know whether it was because he was childless or what.

He had a place on the St. Croix river, a very nice home actually.

He and Mrs. Sanborn would let me go weekends up there by myself and just get out in the woods, it's a lovely place.

He liked the out of doors, he was a great canoeist and got me interested in canoeing.

HAROLD HONGJU KOH: Did you ever go canoeing with him?

JUSTICE BLACKMUN: Not with him, no, but with others.

HAROLD HONGJU KOH: There's a story that's recounted in the history of the 8th Circuit that there's a case in which you asked Judge Sanborn about a petition for relief based on cruel and inhuman punishment.

Do you remember this case?

JUSTICE BLACKMUN: Oh, well vaguely, yes, I guess.

I was concerned about it, and his reaction was that the federal courts didn't interfere with state problems of that kind, at that time, which was true.

But my, how the law has changed since then.

HAROLD HONGJU KOH: Do you remember thinking at the time that that was wrong or something you ought to change?

JUSTICE BLACKMUN: Well, I wanted to change it but I was wet behind the ears and didn't know how to do it I guess, just a punk out of law school.

But there was a very divisive attitude between the federal and state courts.

The federal courts didn't want to interfere in what was basically a state court problem.

HAROLD HONGJU KOH: Did you ever disagree with Judge Sanborn?

JUSTICE BLACKMUN: Oh, not very vitally; he was too smart for me, and he usually was right.

We argued things out here and there.

I tried to be a devil's advocate, didn't get very far.

HAROLD HONGJU KOH: We're going to break for the next tape.

Maybe I'll ask you when we come back to talk a little bit about F.D.R. and what you thought about F.D.R. He must have been a very prominent person in those days in your consciousness.