Transcript

HAROLD HONGJU KOH: This is the Harry A. Blackmun Oral History Project, a joint project of the Supreme Court Historical Society and the Federal.

Judicial Center.

This is session number five.

It's being held on November 22nd, 1994, at the Federal Judicial Center in Washington, D.C. I'm Harold Hongju Koh.

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

Mr. Justice, today we're going to talk about your family life in Minnesota, your years at the Mayo Clinic, your appointment to the Eighth Circuit, and then your early years on the Eighth Circuit.

When we left off last time, you described your early married life.

I think the last thing we talked about was when Mrs. Blackmun was pregnant with your first child.

What do you remember about the birth of your children?

JUSTICE BLACKMUN: Well, I think the birth of one's children stand out rather vividly in his memory obviously and that certainly was true when the first one came along, our daughter Nancy, on July 8 of that year.

It was hot, and I'll never forget when the nurse brought her in to let me look at her.

In those days, all the fathers were relegated to the so-called "fathers' rooms".

They weren't in the delivery room at all.

It was a great day, as you yourself have experienced, when children come along.

I'll never forget, for each of our daughters, we have three, and each day was a great day.

It took a little while for Nancy to come.

This was our first and Dottie was in labor for a good while, but finally she showed up.

The reverse is true with Sally, Sally came suddenly, and Susie did it in the ordinary way except that she arrived in true fashion at two a.m. in the morning.

HAROLD HONGJU KOH: Do you think your daughters take after you or Mrs. Blackmun?

Which one is more like who?

JUSTICE BLACKMUN: I merely repeat what I'm told, that Susie, our youngest, is very much like her mother, and Sally is somewhat like me.

Nancy is all by herself; she's herself.

HAROLD HONGJU KOH: How do you remember their early years of childhood, your mixing of practice and profession and personal family life?

JUSTICE BLACKMUN: Of course they were happy years.

We were in an apartment in Minneapolis near the Minneapolis Institute of Art.

It was a new apartment.

When we moved in, we were the first occupants of it.

Then the three babies arrived at their respective times, and it got a little bit crowded.

When Susie arrived, we knew we had to do something about it and so we built a house in Golden Valley, a suburb of Minneapolis.

We couldn't have carried on in the apartment.

HAROLD HONGJU KOH: Had you made partner at the firm at that point?

JUSTICE BLACKMUN: Yes, I think so.

HAROLD HONGJU KOH: Do you remember a point when you felt you didn't have to worry about money anymore?

JUSTICE BLACKMUN: I've never reached that point.

I always worry about it, because there's some kind of an obligation that comes along, even to this day I might say.

HAROLD HONGJU KOH: But you never felt that at some point you finally could relax a little bit in terms of job security and didn't have to count every penny.

JUSTICE BLACKMUN: I think the answer to that is no.

Of course I started in the Dorsey office, in my old Minneapolis law office in January, 1934, and times were still tough.

We'd gotten beyond 1932, which was depth of the Great Depression.

But the law office was the typical one, where they would take on several cubs every year and not all of them survived, actually.

So their theory is, I think every law office's theory was, you either went up or you went out.

So there was always that worry.

Maybe it was intentional to keep us worrying a little bit.

Kept us in shape.

HAROLD HONGJU KOH: Now David Brink, who later went on to be president of the American Bar Association, called you the young dean of the tax department at the Dorsey firm in those years.

How did you become the leading young person doing tax work?

JUSTICE BLACKMUN: Let me say a word or two about David Brink.

First of all, he was assigned to work with me when he came into the office and was a bright, able graduate of the University of Minnesota.

His.

father was head of the Department of Mathematics, but anyway, he was a significant figure in the Minnesota faculty.

David came over, and we worked together for a while.

He displayed ingenuity and ability and, as you point out, eventually rose to become president of the American Bar Association.

He's all right.

HAROLD HONGJU KOH: What did you and the family like to do for fun during this period?

Were you outdoors people?

JUSTICE BLACKMUN: Well, to a degree.

I asked Dottie about this because you had hinted you might ask me this question, what we did as a group, and Dottie said we did absolutely nothing which was a criticism of me that I was all work and no play.

But we did a number of things.

We took trips together, and I remember taking all of us to Florida one time in a station wagon we had.

We had a great time ending up on the East Coast.

One vivid recollection I have was Susie's encounter with a pelican.

It was rather fun, she was just a little thing at that time.

But we did other things now and then.

I took the two older girls to Chicago because I thought, first of all, they ought to ride on the train, and a train was operating in those days, and we went down and stayed at the Palmer House and did a lot of Chicago sightseeing, that sort of thing.

Susie was too young to go and didn't go.

Nancy went with us to my 25th reunion at Harvard.

She was the only one eligible.

The children had to be ten years or older, and she was, barely.

But we did things like that.

I tried to teach them a little bit about the out of doors.

But Dottie is quite right, I didn't spend as much time with them as I should.

HAROLD HONGJU KOH: Do you regret that now?

JUSTICE BLACKMUN: Yes, to a degree.

HAROLD HONGJU KOH: How about family religious life.

Did you go to church together?

JUSTICE BLACKMUN: Yes, but the girls rebelled, of course.

When the children came along it brought us back to the church.

There was a period of time When we didn't go.

I think that's a rather Usual pattern in young people's lives maybe.

But children come along and you want them to have some religious education.

They rebelled a bit, as most kids do.

HAROLD HONGJU KOH: Was your family always Methodist?

JUSTICE BLACKMUN: Yes.

Both sides of my parents' ancestry, strangely enough.

Even though in my mother's side they originated in Bavaria, a very Catholic area, but they were Protestants at the time.

HAROLD HONGJU KOH: What do you remember about "Ike", Dwight Eisenhower?

When did you first hear about him?

JUSTICE BLACKMUN: Well, when I first heard about him was during the War, and the significance of his being Commander-in-Chief, so to speak.

I thought his name was a great name to have on the side of the Allies.

After all, it was Eisenhower, you know, you might expect it to be on the other side.

But he was an appealing figure.

For a while there was a question, politically, as to which side he would end up on.

I think he was wooed by both the Democrats and the Republicans as a very potentially winning candidate and he eventually went to the Republican side.

I think that was not really unanticipated.

I remember him when he came to Rochester during the campaign wearing a straw hat, the kind that was, well, you remember, "I like Ike" on it.

What a great campaign slogan.

Along with two thousand other people I met him at the time and was captivated by his smile, the like.

HAROLD HONGJU KOH: Did you meet him later when he nominated you to the Eighth Circuit?

JUSTICE BLACKMUN: No, I don't recall that I did.

But, of course, he nominated me.

At least the nomination is over his signature.

HAROLD HONGJU KOH: What do you remember about Joe McCarthy and the McCarthy Era?

JUSTICE BLACKMUN: Well, I remember how difficult it was, and it got worse.

Here he was from a neighboring state.

I remember a lot of conversations that we had in the Mayo Section of Administration as to what this was doing, how far it would go, how dangerous he was, if he was dangerous at all.

It was a depressing period, especially to have him come out of Wisconsin where one would expect the opposite kind of thing out of that state.

Then, of course, we had in Minnesota the rather interesting juxtaposition of names, we had a Senator McCarthy as well as Wisconsin's.

HAROLD HONGJU KOH: What was your relationship with Senator McCarthy of Minnesota, Eugene McCarthy?

JUSTICE BLACKMUN: Well, I got to know him as I did Senator Humphrey.

They were thrown into the situation when my nomination came along by Eisenhower... two Democratic senators.

I guess they had to take the position whether they were in favor of it or against it.

They were both very nice, very nice.

HAROLD HONGJU KOH: Do you think times have changed?

You described yourself as an apolitical person.

Do you think an apolitical person can be nominated now?

JUSTICE BLACKMUN: Yes, I think so.

A former clerk of mine, whom you know, Karen Nelson Moore, I think, who's been nominated for the Sixth Circuit, had her nomination sent to the Senate, in a way was apolitical.

In the sense that I've never associated her with any political activity on one side or the other.

So it's my hope that even after the result of the election a short time ago that her nomination will be confirmed.

We'll see.

HAROLD HONGJU KOH: I have to ask you about one other event of the 50s, rock-n-roll and Elvis.

Do you remember anything about them?

JUSTICE BLACKMUN: Oh, yes.

HAROLD HONGJU KOH: Was that part of your consciousness?

JUSTICE BLACKMUN: It was part of my consciousness but not very deep at the time.

HAROLD HONGJU KOH: How about sporting events?

At the time there were no major league teams in Minnesota, were there?

JUSTICE BLACKMUN: No major league teams, but a lot of activity in getting one.

Of course, in the early days, when I grew up, the American Association included both Minneapolis and St. Paul as teams.

The American Association was one of the top minor-league groups, the International League was another one, the Pacific Coast League was the third, those three.

I was able to get out to Lexington Park to see the Saints play or once in a while to get over to Minneapolis to see the Millers, especially if the two were scheduled to play each other as they always were on holidays.

So we got a little bit of that.

And then the move for a big league team came along, and my law office was active in that quest.

HAROLD HONGJU KOH: How about the Negro leagues?

Were they going in your area of the country?

JUSTICE BLACKMUN: No, they were not at the time.

I remember the advent of Jackie Robinson.

HAROLD HONGJU KOH: Did you ever see him play?

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: Did he strike you as an unusual talent?

JUSTICE BLACKMUN: Oh my, yes, of course.

And an unusual person.

I can still see him on the field.

HAROLD HONGJU KOH: When did you first come by the Mayo Clinic as a client?

JUSTICE BLACKMUN: Well, it was rather curious.

Here was this very dominant, I was going to say industry, it isn't an industry, but dominant activity in Rochester, Minnesota, just ninety miles south of the Twin Cities.

They had no Twin City counsel.

They had been represented for a long time with very able counsel in Winona, Minnesota, a town about forty-five miles east of Rochester.

I think the lay-head of Mayos at the time, a man who certainly influenced my life, his name is Harry J. Harwick, sensed a changing political situation, changing legal situation and thought that maybe the Mayos should have representation by a larger firm that had rather a broad client base, particularly in Washington.

I was in the tax department.

It consisted of Leland Scott and me, just two of us, and Mr. Scott, with whom I worked, was a very able tax lawyer.

The Dorsey office had picked him up out of Washington actually.

He came from Wisconsin but they brought him out there and he became their tax partner.

But he was ill and was out of the office as much as he was in it in those days, which in a way was good for me, because I had to step in the breach when he wasn't there.

One day, almost without notice, the receptionist called in and said, there's a Mr. Utz from the Mayo Clinic who stopped in to see Mr. Scott.

He said he had a tax matter he wanted to discuss.

Would you see him?

Scotty was ill and at home that day.

That was the first contact that we had with Mayos, so far as a professional obligation or commitment was concerned.

Mr. Harwick, of Mayos, of course, knew James E. Dorsey and they were both members of the Minneapolis Club and that sort of thing.

So I saw Bert Utz, and he indeed had a little gift tax problem for one of their leading surgeons down there, Donald C. Balfour.

We took it on and that was the first contact.

I've always felt it was rather a test interview, a test case and so forth.

Out of that grew more and more things for Mayos, many of which landed on my desk or, particularly, on Mr. Scott's.

HAROLD HONGJU KOH: At the point when you went to become resident counsel, how much of your time were you spending on Mayo matters at Dorsey?

JUSTICE BLACKMUN: I would say sixty percent of the time because... I don't know how physicians are elsewhere but certainly down there if I drew a will for one of their neurosurgeons and he liked it, well, pretty soon I had five other neurosurgeons knocking on the door because they followed.

It reached a point where I was going to Rochester every month, spending a week down there with full appointments for two or three or four or five days.

It developed so that I knew, maybe, seventy percent of the staff from having done work for them, personally and otherwise.

HAROLD HONGJU KOH: And how did the idea come about to have a resident counsel in Rochester?

JUSTICE BLACKMUN: I don't know really.

There was one A. J. Lobb, his name was, who acted somewhat in that capacity.

He had been comptroller of the University of Minnesota and had a legal education but never practiced and the legal problems they had routinely went to him.

But I think Mr. Harwick felt that they needed someone who was spending full time in the law, and not part time.

And Mr. Lobb was close to retirement age.

So, I guess that's the way the thing started.

HAROLD HONGJU KOH: And when they broached it to you were you very receptive, somewhat receptive, initially opposed to the idea?

JUSTICE BLACKMUN: I was a little puzzled because Mr. Harwick called me td stop in at his office one day when I was down there and broached the subject.

I told him I would like to speak to Judge Sanborn about this.

They were passing friends anyway.

Of course, he was way ahead of me, he said, oh, we've spoken to Judge Sanborn, about it.

And I said I'd like to speak to James Dorsey also, of course.

And he said, I've already spoken to James Dorsey.

And I thought I'd play my trump card, and I said I'd like to speak to Dottie about it.

Mr. Harwick said, I haven't spoken to Dottie about it.

He said, I won't press you, let me know by the end of the calendar year.

"Well, this was fairly early, it gave me about eight months to think about it which I thought was a very generous period. "

"I fussed and stewed about it. "

"It was a difficult decision because the sun was rising after the Great Depression. "

"The firm looked ahead to what it thought would be prosperous years and all the cubs I worked with were there. "

"We felt things looked pretty good and, of course, they stayed on and retired eventually... they're all multi-millionaires, I know they are. "

"But it was a difficult time. "

"I remember one time when they called me and said, let's all go over together to see James E. Dorsey about your possibly leaving the office. "

"We went over to see Mr. Dorsey and talked up and down about the problem. "

"It was the first break in that group that we had which was fairly close together. "

"I finally asked the vital question, I said, Jim, what do you think? "

"And he said I'll give you the answer when a formal invitation is laid out in writing. "

"But in the meantime, he went on his annual elk-hunting trip out in Montana, and his horse stepped on a beehive, and he was thrown and landed on a rock. "

"He was very severely injured and died out there, as a matter of fact. "

"So I never did find out what Jim Dorsey thought. "

"I think I know but, we never had a final-- "

HAROLD HONGJU KOH: If he had asked you to stay, would you have stayed?

JUSTICE BLACKMUN: --That's a pretty direct question.

I don't know.

That would have been tough.

Dottie and I finally took a weekend off, went down to Chicago and holed-in at the Palmer House.

I may have said this last time, actually put our feet on the window sill and talked for hours about this, the pros and the cons of it.

Because I know it meant a lot to her, We had just built a house in Golden Valley, Minnesota.

And it would mean that we would leave that and that also would mean to me, I'd have to build another house in Rochester.

I wouldn't get away with not having her have her house.

It also meant a reduction in income, immediately, as well as in the long run.

But Dottie never pressed me, one way or another.

She said, I'll go along and be with you on it, whatever you want to do, I'll be there.

HAROLD HONGJU KOH: How did the kids react?

JUSTICE BLACKMUN: Well, I think they were too young to have a positive reaction to it, except maybe for Nancy.

Certainly Susie was too young.

Eventually we went down to Rochester, and they grew up there and had a great time.

HAROLD HONGJU KOH: Did you have any concerns that you were getting off the beaten track?

JUSTICE BLACKMUN: Yes.

Wondered about it.

It got down to the question I think I mentioned last time or so, of the Dean at Minnesota asking me what do you really want to do with your life.

And that was the way the question shaped up.

I wasn't entirely sure I wanted to be engaged solely in client care.

It would have been a very satisfying occupation all right, but in a way I thought I wanted to do some other things.

He influenced me in that respect, as did Mr. Harwick, who said you can do such and such, the thing down here, the job is yours, you can make of it what you want.

And that was pretty appealing.

HAROLD HONGJU KOH: Do you think if you had stayed at Dorsey and Judge Sanborn had recommended you.

to the Eighth Circuit that you would have still landed in the Eighth Circuit nine years later, or do you think that there's something about going to Mayas that ended up making that more likely.

JUSTICE BLACKMUN: I think it perhaps made it more likely, but I don't want to give you a negative answer to that opportunity.

HAROLD HONGJU KOH: When you moved down--

JUSTICE BLACKMUN: --It was easier for me to be appointed when I was in Rochester than it would have been for me to be appointed from Minnesota's largest law firm.

There was always that antagonism, the Twin City boys against the lawyers out in the field, who felt they should have a share of federal judicial appointments.

And being in Rochester had made me, made me in a way one of the boys in the field and not a member of some big law office.

HAROLD HONGJU KOH: --How quickly did it become clear to you that you had made the right decision to move to Rochester?

JUSTICE BLACKMUN: Almost immediately I think.

And certainly as soon we built our second home down there and got into it.

HAROLD HONGJU KOH: Do you still feel that those were the happiest years of your life?

JUSTICE BLACKMUN: Yes.

Professionally.

From a professional point of view.

I don't know why I say that.

It's because I think I have a leaning towards medicine.

I like what the physicians try to do, and this gave me an opportunity to have one foot in medicine and the other foot in law.

Another thing is that for the most part I remember the happy events, not the unhappy ones.

HAROLD HONGJU KOH: What are some of the happy events?

JUSTICE BLACKMUN: Well, the reorganization of the Mayo Foundation, I think.

The transformation of the downtown hospitals, which had been run by the Kahler Corporation, into an eleemosynary setup.

The building of an experimental hospital in Rochester, which was my responsibility in a way, in part anyway.

HAROLD HONGJU KOH: What was your daily schedule like there?

In some sense, this was your first solo office or your own office.

How did you spend your time?

Was it different from the way you did at the firm?

JUSTICE BLACKMUN: Yes, I would say so because I usually went down and had breakfast at the counter at the Kahler Hotel and ran into people like the owner of the Brooklyn Dodgers, Mr. O'Malley--

HAROLD HONGJU KOH: Really !

JUSTICE BLACKMUN: --who was sitting across the way and came over and sat by me.

One always ran into all kinds of people there at the lunch counter, and it was rather fun.

HAROLD HONGJU KOH: What is the difference between the Mayo Clinic, the Mayo Association, and the Section of Administration?

JUSTICE BLACKMUN: The Mayo Clinic was the operating professional taking care of patients endeavor.

Mayo Association was a eleemosynary corporation formed, oh, back in the teens.

To it, the doctors Mayo transferred most of their personal assets.

Each of them had the feeling that it was not good for a physician to have too much money.

They kept a reasonable amount for themselves and gave the rest to the Mayo Association, which was devoted to medical education and medical research.

The name was not a particularly good one.

Eventually we changed it to Mayo Foundation... "association" didn't mean much in the way of a name.

HAROLD HONGJU KOH: Your c.

v. says that you were a member of a Section of Administration, does that mean that you were one of the officers?

JUSTICE BLACKMUN: The Section of Administration was merely a group of us there in the clinic organization.

The medical setup is divided into clinical specialties, there would be a section of pediatrics, a section of pediatric surgery, a section of internal medicine, etc, etc.

The so-called Section of Administration consisted of about four or five of us who... the purpose of it was to handle the business end of the Mayo enterprise, to take business details off the back of the physician so that the physician could go down the hall and attend to patients.

It might be a Saudi Arabian prince in the first examining room and a small town farmer from Iowa in the next one.

We didn't want the physician to be bothered with bill collection or the importance of his patient.

That was our job.

To do that, take it off the back of the physician, make collections, keep the clinic operating.

HAROLD HONGJU KOH: For how long were you the only lawyer?

JUSTICE BLACKMUN: Oh, I am guessing now.

I went down there in 1950.

1 would say maybe three years or so.

Now they have about seven in the legal department, so called.

HAROLD HONGJU KOH: Was one of them Sandy Keith?

JUSTICE BLACKMUN: Well, Sandy came along.

Sandy was A. M. "Sandy" Keith, was the son of a Rochester physician who was on the staff, went to Amherst and then was a graduate of Yale Law School and found himself in the Korean War.

Saw a good bit of action in that war.

Finally, he was due to come back, and we were thinking about getting an assistant for me, anyway, at the time.

A lot of things had happened, he wasn't the first one but, Sandy was willing, first of all to come to Rochester and secondly to come into the clinic.

So he came in and we worked together for a few years.

He was a great person.

I remember one day he came in and he always had a political bug in him... said, I would like to run for the state senate, is that all right?

Well, the Section of Administration in its weekly meeting took up this profound question and, in its great wisdom, we didn't want to say no to Sandy, but we all said to ourselves, he'll never be elected.

And so let him run and get it out of his system.

So Sandy ran.

He punched every doorbell in town and got himself elected, much to our embarrassment.

Then the question was, what do we do?

HAROLD HONGJU KOH: Was that a full-time job?

JUSTICE BLACKMUN: No, but it was a pretty substantial part-time job.

And of course it had political overtones.

Success, I think, encouraged Sandy to look for higher office and he did.

Eventually he ran up against Karl Rolvaag in a battle for the D.F.L., the Democratic-Farmer-Labor Party nomination for Governor, which was a bloody affair.

Sandy, was defeated there but eventually... he has great comeback abilities... was named by Governor Perpich a few years ago to be chief justice of the Minnesota Supreme Court.

Shortly thereafter he and Perpich had a falling out, but Sandy is still chief justice.

HAROLD HONGJU KOH: Your average day was spent then almost entirely with doctors, is that right?

You were the only non-doctor.

Would there be most days in which you'd be the only non-doctor in the group?

JUSTICE BLACKMUN: Well, of course, those of us who made up the Section of Administration were not physicians.

We had weekly meetings and sometimes more than that if a major problem came up.

We always met on Tuesdays, that took most of the morning, sometimes all day.

Otherwise, I worked a lot with physicians.

I felt the more I could learn about how medicine was practiced there, the better off I would be in advising the physicians.

So I asked for and received permission to attend the monthly meeting of what they call Clinical Society and the fortnightly meeting of what they called Surgical Society.

Surgical Society was where all the surgeons would have dinner together, all of them.

Then it would be followed by the giving of a few papers, maybe two or three, on surgical subjects, and then followed by a review of all surgical deaths that had occurred in the preceding two week period.

This was conducted by a member of the Section of Pathologic Anatomy, those who did the post-mortem examinations and the like.

They were ruthless.

If they thought the surgeon had made a questionable decision, they would call it.

All the surgeons discussed it and I think all learned by it.

I certainly did.

I could see the professional problems that would confront the operating surgeon, both in mistakes that might have been made at Mayos but also in errors that had been made elsewhere in patients who'd come to Mayos.

With Clinical Society, it was the same thing except that all the clinicians met monthly.

Again, the same kind of routine.

But I could see, and discovered, what were the topics of profound interest at the time.

One thing, a major interest to me, was that this was right at the dawn of the heart-lung bypass procedure.

Mayos got into this early, not as early as the University of Minnesota, but this was because Mayos wanted to be very certain about what they were doing.

They built on what was called the Gibbons Bypass machine, became later known as the Gibbons-Mayo machine.

Working with private patients, we couldn't, we felt we couldn't take the risk that some other enterprises could.

That was a difficult time.

I will never forget the one week where I watched the last procedure on an animal, which was done in a normal hospital room rather than in the animal quarters, and the next day they did the first intra-cardiac surgery and followed by three others, one each day.

The first person survived, the next three died, not on the table, but died eventually.

And part of that, the difficult period at that time was due to the fact that the patients were desperately ill, and they had nothing to look forward to.

Nowadays, of course, that isn't the case, and everybody is doing bypass, double, triple, quadruple bypass on people that are not that desperately ill.

They catch them earlier.

HAROLD HONGJU KOH: What was the law and policy toward abortion in those days, in Minnesota?

JUSTICE BLACKMUN: Strangely enough I don't remember any abortion problems at the time.

We did have a few instances of, one might call cases with euthanasia overtones.

The major one that plagued me when I was there had to do with transfusions for people who were Jehovah's Witnesses, particularly children.

Their parents took the position: no transfusion.

And what did we do?

I would get a call from a surgeon in the middle of an operation who would say I have a fourteen year-old here on the table, he needs a transfusion, he needs it badly.

If he doesn't get it he'll die.

Then I was told the parents were Jehovah's Witnesses and against it, what do we do?

Well, that wasn't very difficult for me.

We went ahead and gave a transfusion.

Took the risk of a lawsuit.

I felt Mayos was a large enough institution to take that risk and to assume it.

We never got into any real trouble with--

HAROLD HONGJU KOH: They never sued?

JUSTICE BLACKMUN: --They never sued.

I'm sure there were resentments about it.

HAROLD HONGJU KOH: What about euthanasia, did you ever get into trouble over that?

JUSTICE BLACKMUN: Well, there was always the problem of how long you kept a patient, say, in a machine to keep the lungs operating and if you pulled the plug you knew he'd die right away.

Those cases usually came up where someone had been seriously injured in an automobile accident or something and ended up in a respirator, and the parents for four or five or six years would live with this child of theirs in a respirator.

It's tough.

And of course, we have a case or two like that down here.

The physicians were torn.

They're trained to preserve life not to pull the plug, so to speak.

HAROLD HONGJU KOH: Quite a few years later legal and medical ethicists developed standards of brain death and "do not resuscitate".

Did you have similar rules?

JUSTICE BLACKMUN: Yes.

Unless we always were able to determine the status of the brain.

There were no brain waves, why, that eased the decision.

HAROLD HONGJU KOH: And how did you develop these standards, was it consultation between you and the doctors?

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: Setting a policy for the clinic or the entire.

JUSTICE BLACKMUN: We discussed it in administration and set up a policy and moved accordingly.

Knowing that there was risk in it all... risk in the sense of monetary risk but those one can assume.

HAROLD HONGJU KOH: --Did you get sued very much?

JUSTICE BLACKMUN: In those days, not very much, strangely enough.

Litigation against physicians has become much more popular in recent years.

There was a time when even the bringing of a suit against a physician was very damaging to the physician.

There was publicity about it.

I think, back in those days the average physician just dreaded being sued.

But, we had to get over that.

There are always some lawyers, I could name a few, I shall not, who wanted malpractice cases.

I reached the point where the more prominent the lawyer, the more we didn't do business with him.

We went to court on it.

HAROLD HONGJU KOH: Did you file many cases as a plaintiff for the Mayo Clinic?

JUSTICE BLACKMUN: Not many as plaintiffs, no.

We stayed out of court, but the cases that were the other kind, where we were sued.

HAROLD HONGJU KOH: You are later famous in Roe v. Wade for your discussion of the relationship between the physician and the patient.

Did this feeling about the sanctity of this relationship develop during this period, do you think?

Well, I suppose it did.

I've never really analyzed my thinking or attitudes, but.

Roe against Wade ended up, people overlooked this many times, there are a lot of people using loose talk like "abortion on demand", which certainly is not in Rae against Wade, because always I was very careful to say that the patient with the consent of her physician would do such and such.

I always brought the physician in.

And this "abortion on demand" talk annoys me when counsel rather carelessly use the phrase.

How often at Mayos did you see irresponsible physicians or physicians who were careless or committing malpractice.

Or was there an internal disciplinary procedure for those people?

JUSTICE BLACKMUN: As far as our staff was concerned, I saw very little of that.

They wouldn't have been on the staff.

Of course, every now and then we let a physician go or he departed voluntarily, but not due to malpractice.

We saw the results of a lot of surgical error that people would come up from Peoria or Sacramento or somewhere with a problem, and we'd have to cure it and that was always embarrassing, because we liked to have good relationships with what we call the LMD, the local physician.

Of course, once in a while somebody would leave a sponge in, or worse, a scalpel or something.

But some of these sponges, they're very small little things, you can hardly see them and if they get blood-soaked its easier to overlook, but there they are, and they'll show up.

There is only one answer to it.

If you find it, you go in, have a second operation, take it out.

I always thought at the time those cases were not worth very much for settling purposes.

We didn't have many, but we did the second operation without charge, usually were able to settle them for less than three thousand dollars.

HAROLD HONGJU KOH: Do you think you got spoiled in the sense that you got used to seeing very fine professionals or something that's much higher than the standard across the country?

JUSTICE BLACKMUN: Yes, I do.

Dottie and I still have that feeling of reverence for Mayos.

A lot of people think it's misplaced, but that is the way we feel.

I think it's top grade medicine.

HAROLD HONGJU KOH: How about psychiatry and psychology?

You later came to do a lot of thinking about insanity defense in criminal cases.

Did you have much exposure to psychiatric medicine?

JUSTICE BLACKMUN: Well, there was a section of psychiatry there.

I had a lot to do with them, because very often those physicians would be subpoenaed to give a deposition in litigation that did not have anything to do with Mayos.

It would concern a patient and people elsewhere, a patient who had come to Mayos and the lawyers wanted to know what the findings were and that sort of thing.

Often, when there was a psychiatrist somewhere in the lineup of consultants whom the physician had seen, of course he was called.

But I certainly accumulated a great deal of respect for the section of psychiatry out there.

In particular for Dr. Howard P. Rome, who was head of it for a time.

One of his sons is now head of the section of psychiatry at Mayos.

His father was a very erudite, able, person who could have been a wonderful lawyer.

One of the greatest witnesses I've ever come across.

I saw a lot of the section of psychiatry.

HAROLD HONGJU KOH: I remember once I worked on a pool memo as your law clerk in which there was a lawsuit between the American Psychiatric Association and the American Psychological Association, and you wrote in the margin, "the old sub-surface controversy".

Did you see that controversy or battle between psychologists and psychiatrists a lot in Mayas?

JUSTICE BLACKMUN: No, not at Mayos very much.

I could see some disagreements.

Of course the psychologists always felt they were just as good as the psychiatrists; they didn't have the M.D. degree.

The psychiatrists would kind of look down at the psychologists at times.

It's a normal tension but we held it at a minimum.

HAROLD HONGJU KOH: You also later wrote opinions about drugs and advertising for drugs.

I'm wondering whether you developed any sort of attitude toward generic drugs or doctors as price fixers in your time at Mayos.

JUSTICE BLACKMUN: There's that old problem, of course.

Sometimes the generic drug costs a lot less than the other type, and doctors often tend to prescribe the one.

This is the problem of the drug manufacturers and of course they justify it by saying they have to have large profits in order to do their necessary research.

There's some truth to that.

HAROLD HONGJU KOH: How did you come to feel about the American Medical Association?

JUSTICE BLACKMUN: In the early days, I felt it was a very conservative organization run by a group of, an inner core, of individuals.

Then one of the Mayo physicians, a proctologist actually, was elected a member of the Board of Trustees of the AMA.

He came in one day and said,

"I have to go to the annual meeting of the AMA. "

"I want you to come along. "

Well, what would I do?

"Well, I want you to see how it works. "

I did.

It was held in Atlantic City.

It was always such a big meeting.

There are only two or three or four places in the country where it can be accommodated.

I think as a result we shook them up a little bit and tried to liberalize the board, fought the inner circle, somewhat.

That's not an unusual situation for professional organizations.

HAROLD HONGJU KOH: The New York Times called you when you were first nominated to the Supreme Court, a

"white, anglo-saxon, protestant, Rotarian, Republican man from the suburbs. "

I guess the implication was that the world of Rochester was a homogenous place with few ethnic groups.

Do you think that was the case, i.e., it wasn't a particularly diverse community, or was it kind of a rarefied community?

JUSTICE BLACKMUN: That was in the New York Times, was it?

I'd forgotten where.

HAROLD HONGJU KOH: Yes, 1970.

JUSTICE BLACKMUN: I heard that, of course.

Well, yes, Rochester was a very special community.

When we went down, there was the town, and there was the Mayo Clinic.

One thing that again our Section of Administration worked hard on was to diversify this a little bit.

We thought one of our greatest accomplishments was to get IBM to come in.

It took a lot of doing.

I well remember when the full board of IBM came out to look the place over.

We thought it was an ideal place for one of their outlets.

I guess they eventually agreed.

We were jubilant when they came in with a large complement of very able people on the scientific and engineering side, which certainly balanced the physician setup.

But Rochester is a special place.

The schools are good, the level of intelligence and ability in the citizens of Rochester is really very high.

There weren't any slums there at the time.

I remember our daughters, when they left, said

"we enjoyed growing up here, but Daddy it isn't the real world. "

And it wasn't.

HAROLD HONGJU KOH: Last question before we take a break.

At your Supreme Court confirmation hearing, you said that in Rochester all the children call all the adults "doctor" or that you were often called "doctor".

Was that the case?

JUSTICE BLACKMUN: Yes, it was.

The kids, of course, knew a lot of physicians and assumed that any adult, male particularly, was a doctor.

I fought it for a while and finally gave up.

When one was called doctor, it was kind of funny.

You accept it and don't pay much attention to it.

I might say, if I could go back to that nasty New York Times thing, the Rotarian business wasn't my choice particularly... I don't mean this as a criticism of Rotary but the Section of Administration felt that one of us had to be a Rotarian and Mr. Lobb, whose name I mentioned before, had been it before and he was leaving and so that honor fell on me.

That's why I was in Rotary for a while and eventually became president of the Rochester Rotary Club for a year.

It does a lot of good, there's no question about it.

I don't think it deserves some of the adverse tributes that are paid to it.

But I think I rose beyond that nasty New York Times appellation.

I hope I did.

HAROLD HONGJU KOH: When we come back after the change of tape, we'll talk about some of the events that were going on in the real world at the time: the Korean War, Thurgood Marshall's fight in Brown v. the Board and things like that.

Break