Transcript

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

It's being held on January 17, 1995, at the Federal Judicial Center in Washington, D.C. My name is Harold Hongju Koh, I'm a professor at Yale Law School and a former law clerk to Justice Blackmun, and I'm the questioner for this session.

Mr. Justice, today's session is about the rest of your Eighth Circuit years and your move to.

Washington, D.C. to take your place on the Supreme Court.

At the end of the last session, we had started talking about your years on the Eighth Circuit, and in particular, we had spoken about the death penalty cases that you sat on when you were there, and also a case involving cruel and unusual punishment, Jackson v. Bishop.

What I wanted to ask you about today were some of the other cases in the Eighth Circuit that were particularly memorable to you.

We'd like to start by talking about those cases on which you sat that later went to the Supreme Court.

The first of those is a procedure case about jurisdiction.

It was called Durfee v. Duke.

Do you remember this case?

JUSTICE BLACKMUN: I do indeed, yes.

HAROLD HONGJU KOH: What happened?

JUSTICE BLACKMUN: As I recall, this was a question of jurisdiction of Nebraska on the one hand, and Missouri on the other hand, and whether full faith and credit should be given to a successful Missouri piece of litigation to what had been a Nebraska property.

For me it was a difficult case.

I think not only for me, but for the three of us who sat on it.

We were uncertain of our decision, and so it passed on up to the Supreme Court,--

HAROLD HONGJU KOH: And what did they do?

JUSTICE BLACKMUN: --I think they reversed us.

HAROLD HONGJU KOH: And how did you feel when you got reversed?

JUSTICE BLACKMUN: I was glad to get the law clarified.

Those reversals never bothered me, particularly by that time in my Eighth Circuit tenure.

The first time it happens, I think, one's a little bit bothered, but you can't be right all the time, especially in federal cases, one is going to get reversed.

At one time, I gave a little speech to new federal judges and tried to settle their fears about reversals and gave them my record which is not very good.

I was reversed more times than I was affirmed.

But then, of course, when a case is taken, the chances of reversal are greater than the chances of affirmance.

Then there's always the situation where one is affirmed, but saying the lower court was right but for the wrong reasons expressed, and that isn't very much comfort either.

HAROLD HONGJU KOH: Do you remember writing many decisions on the Supreme Court reversing the Eighth Circuit?

JUSTICE BLACKMUN: Not many, no.

Usually they were assigned to someone else.

HAROLD HONGJU KOH: Did you ask for them to be assigned to somebody else?

JUSTICE BLACKMUN: Not particularly.

I think it was more or less that feeling that, well, it was a factor in the assignment set up by whomever was presiding.

HAROLD HONGJU KOH: When you would go back to the Eighth Circuit Judicial Conference after the Eighth Circuit had been reversed by the Supreme Court, would you ever talk to the person whose decision had been reversed to make them feel better about it?

JUSTICE BLACKMUN: Well, yes.

When I went back to those annual conferences, I always had a speech to give, and among other things we reviewed what I thought were the major decisions of the Supreme Court during the year, but always we went over the Eighth Circuit cases.

There was no particular lesson to be gained.

Everybody gets reversed, and, sure, I spoke to the judges and reminded them that I'd been reversed a number of times.

HAROLD HONGJU KOH: There was one case that you called a happy reversal for you.

A case called Jones v. Alfred H. Mayer, in 1967.

Do you remember that case?

JUSTICE BLACKMUN: I do.

I think there was more than one case that was a happy reversal.

We had felt that Supreme Court cases on the books dictated a certain result, and that as an inferior court, we were bound by it.

In retrospect, maybe we shouldn't have felt so confined, Maybe we should have branched out on our own as Judge Skelly Wright did a couple of times when he was on the court of appeals.

For the most part, I think the Eighth, Circuit felt that it was bound by decided Supreme Court cases, and if the law was to be changed, it was up to the Supreme Court in the first instance, rather than to us as an inferior court.

If I had to do it over again, maybe one or two situations I would have done otherwise.

Stirred things up a little bit.

HAROLD HONGJU KOH: Now the Jones case was about private discrimination and housing.

Do you remember anything more about that case?

JUSTICE BLACKMUN: No, nothing that I can comment on right now.

HAROLD HONGJU KOH: Another case which you also seemed to think was a happy reversal was Ashe v, Swenson.

It was a double jeopardy case.

That was another case in which you mention being constrained as part of a lower court.

JUSTICE BLACKMUN: Was Ashe against Swensen the poker case?

HAROLD HONGJU KOH: Right.

JUSTICE BLACKMUN: Where a number of people were playing poker, and one was prosecuted, and the prosecution went after another one.

A question of double jeopardy there.

, 1 don't think we minded too much getting reversed if we thought the Supreme Court law was wrong and they overruled some existing cases.

We're all in this together, and we're striving for the truth, whatever that is.

HAROLD HONGJU KOH: There's another case in which you were on the court, but didn't write the opinion.

It's Tinker v. Des Moines, about the rights of school children in Des Moines to wear black armbands to protest the Vietnam War at their school.

Do you remember how that case unfolded?

JUSTICE BLACKMUN: I remember that one really very well.

It concerned, of course, the right of children to certain constitutional claims.

As I recall, and I hope I'm right on this, it was heard en banc.

There were eight of us sitting en banc.

I'm telling tales out of school and all, I suppose.

But the initial vote was five to three, in which one of the judges whom I revered grumped and groaned a little bit at that point and said,

"Well, I'll change my vote. "

"We'll make it four to four, and those jokers down in Washington can answer this question. "

That's precisely what he did.

So that we affirmed that case by an equally divided vote and didn't write any opinions.

HAROLD HONGJU KOH: Was it five-three to reverse or to affirm?

JUSTICE BLACKMUN: To affirm, as I remember.

I could be wrong on that.

It was a good case.

HAROLD HONGJU KOH: Which side were you on?

JUSTICE BLACKMUN: I was on the three.

So we bounced it up there, and I think it was an important ease.

HAROLD HONGJU KOH: That was one of the early cases about the Vietnam War.

Did you have a lot of cases about the Vietnam War during your time on the Eighth Circuit?

JUSTICE BLACKMUN: I don't know about a lot of them.

We certainly had our share, and the war stirred up legal controversy at the time.

It was not an easy time in the federal courts, but we all survived.

HAROLD HONGJU KOH: That was also the period of the demonstrations at college campuses and Kent State protesting against the invasion of Cambodia.

A number of your opinions suggested some concerns about the permissiveness of the time.

Do you remember those feelings?

Do you think that those points are ones that you would feel now?

JUSTICE BLACKMUN: It was a difficult time, and it was brought back to my recollection just a year ago when I was up for commencement at Harvard.

The 25th year class reunioning, of course, was in the Sixties.

They were there, sort of in, almost in an apologetic mood for their antics during that period.

It was difficult in educational circles, but we survived again.

HAROLD HONGJU KOH: Your daughters were in their twenties at that time.

Did they have any, involvement with this mood of demonstration?

JUSTICE BLACKMUN: No active involvement as I remember.

We talked about these things a little bit.

HAROLD HONGJU KOH: It seemed to be a time of rebellion against authority.

Did your daughters rebel against you?

JUSTICE BLACKMUN: Oh, they always are in a state of rebellion, Mrs. Blackmun and our daughters.

They have enough votes to override a veto on my part all the time.

HAROLD HONGJU KOH: There's a sort of a fun case, in 1969 which involved Standard Oil, Humble Oil v. American Oil Company.

Can you tell us about that?

JUSTICE BLACKMUN: I think this was an important civil case.

Standard of New Jersey brought the suit to obtain permission to use the name Standard Oil in territory to which, under the old trust agreement, had been allocated to Standard of Indiana.

The opinion was assigned to me.

I've forgotten whether I was the one who made the assignment, but I sat on it, in any event, for almost a year before I got it out.

Out of it, I think, came the use by Standard of New Jersey of the trade name Exxon.

They were denied the use of Esso, which they wanted to use.

It was a great case.

HAROLD HONGJU KOH: There are a lot of issues involving civil rights that came before you.

One area was school desegregation.

Kemp v. Beasley in particular was a case about desegregation of the Arkansas schools.

Do you remember much about these cases?

JUSTICE BLACKMUN: Not a great deal.

It was a long time ago.

HAROLD HONGJU KOH: There were also issues involving racial discrimination and jury selection.

How did you feel about the civil rights issues as they were playing out in your court?

JUSTICE BLACKMUN: They were troublesome.

Of course, most of them centered in Arkansas where the issues were acute.

I'm not so sure the Eighth Circuit at that time was as liberal as it should have been.

But there was always the comfort of knowing that there was a presence in Washington and the Supreme Court of the United States which could straighten us out.

HAROLD HONGJU KOH: Where did you fall in the spectrum of the judges on the Eighth Circuit?

JUSTICE BLACKMUN: I suppose I was more to the left of center than the rest of them.

HAROLD HONGJU KOH: You were later described when you were nominated for the Supreme Court as progressive in civil rights, moderate in civil liberties, and pro-government in criminal cases.

Do you think that was an accurate description?

JUSTICE BLACKMUN: That's a pretty general description.

Maybe it's fairly accurate, for the most part.

But that's pure speculation.

HAROLD HONGJU KOH: Looking back on those Eighth Circuit years, you were quite frank and candid about some of your views in the death penalty cases and the civil rights area.

Did you ever feel that your candor made your colleagues uncomfortable?

JUSTICE BLACKMUN: I never had that feeling, and they didn't express concern about it.

They took it in stride.

I never felt any spleen on their part.

HAROLD HONGJU KOH: Later on, when you went on to be nominated for the Supreme Court, you were asked about your position on civil liberties cases, and you mentioned that particularly in the areas of labor law and civil rights, you felt that you had been protective of the rights of the little person.

Is this something that you were particularly attuned to?

Were there any cases that you recall from that period that stood for these principles?

JUSTICE BLACKMUN: I suppose I have to give you an affirmative answer to that one, Professor Koh--

HAROLD HONGJU KOH: --How about--

JUSTICE BLACKMUN: --without elaboration.

HAROLD HONGJU KOH: --How about tax cases?

Did you have a lot of tax cases?

JUSTICE BLACKMUN: We had a lot of tax cases in the Eighth Circuit, and I suppose I had more than my share of them due to a couple of things.

One was that I had had six years in practice doing nothing but tax law.

I didn't dread tax cases.

I thought they were interesting.

Everybody else thought they were very dull and difficult and wanted to avoid them.

So I caught more than my share of tax cases and didn't mind them at all.

HAROLD HONGJU KOH: Fairly early on in your tenure, you had an interesting case about Minnesota's reapportionment.

A three judge district court case called Honsey v. Donovan, involving Governor Karl Rolvaag.

What do you remember about Governor Rolvaag, about that case?

JUSTICE BLACKMUN: The governor was the son of a very prominent writer who had... oh, what's the name of the book he had written about the settlement by the Scandinavian people... Giants in the Earth.

Governor Rolvaag himself was controversial as was evidenced by his later intra-party feud with Sandy Keith, who is now chief justice of the Supreme Court of Minnesota.

But he was, of course, a D.F.L. 'er, as we called them, Democratic-Farmer-Labor, in Minnesota, and was easily elected because of the prominence of the Rolvaag name, I think.

Whether he equated with his father in intellect and ability, I don't want to say, but he was a prominent governor and rather controversial one in Minnesota at the time.

We had the old Stassen versus the D.F.L. group, and that influence and strain continued for many years.

I liked Governor Rolvaag.

You never were too sure of where he was going to be, but I always enjoyed him personally.

HAROLD HONGJU KOH: Did you have much personal contact with him?

JUSTICE BLACKMUN: A little, yes, sure.

Due to some domestic aspects of his life, I was brought into contact.

HAROLD HONGJU KOH: What kind of domestic issues?

JUSTICE BLACKMUN: Well, maybe I'd better not go into those.

HAROLD HONGJU KOH: Okay.

In 1965, the Minnesota Twins won the pennant.

Do you remember much about that period, and what you were doing during that time?

JUSTICE BLACKMUN: Well, I was always interested in baseball, and they indeed won the pennant, I think for the first time, and engaged in a strenuous seven-day World Series with the then-Los Angeles Dodgers.

Sandy Koufax, a few other guys.

HAROLD HONGJU KOH: Did you go to a lot of the games?

JUSTICE BLACKMUN: I went to all the games that were in Minneapolis and Minnesota at the time.

I didn't go out to the L.A. games.

But as I remember, the first six, the home team won, then came the deciding seventh game in the Twin Cities, Disastrous afternoon.

HAROLD HONGJU KOH: Did you get up to Minneapolis much during this period?

JUSTICE BLACKMUN: Whenever I could.

It was not too far.

Eighty miles, roughly.

I would go up to see Judge Sanborn every now and then.

Other things took us tip there, three-judge cases and the like.

But it was always a little strained because I usually came back fairly late and got back to Rochester, oh, one or two in the morning.

Wasn't much good the next day.

HAROLD HONGJU KOH: Did you see your mother very much during this period?

JUSTICE BLACKMUN: Yes.

I don't know whether one could characterize it as very much, but I always checked in with her and made a point of getting up there to see her regularly.

HAROLD HONGJU KOH: Do you think she had a good sense of what your daily occupation was like, or was it all a mystery to her?

JUSTICE BLACKMUN: I think she had a pretty good sense of what it was like.

She was far wiser than I was in many respects, and forecast some things that would happen that I couldn't believe.

She was just as right as she could be.

HAROLD HONGJU KOH: Public events or personal events?

JUSTICE BLACKMUN: Personal events mainly.

It would have to do with my relationship with the chief justice and so forth.

HAROLD HONGJU KOH: What were her predictions in that regard?

JUSTICE BLACKMUN: Well, she said,

"Harry, you're going to disagree at times, and it may affect your friendship adversely. "

"You should be prepared for it. "

Well, I thought this was a lot of foolishness, but she was never more right.

HAROLD HONGJU KOH: Did she know the chief justice well personally?

JUSTICE BLACKMUN: Oh, very well, yes.

We grew up more or less together with a couple of other guys, and we were in each other's homes frequently.

HAROLD HONGJU KOH: During this period, Chief Justice Burger was nominated to the Supreme Court.

How did you feel at the time?

JUSTICE BLACKMUN: That he was nominated?

HAROLD HONGJU KOH: Yes.

JUSTICE BLACKMUN: I think those of us out there in the Midwest were rather enthusiastic about it.

In some quarters, it was a surprise in a way, and yet, I think much of it went to a speech he gave in Wisconsin, the title of which, as I recall, was "Who Will Watch the Watchman"?

This attracted some national attention, or at least it attracted the attention of the Nixon administration at the time, and I think had a great deal to do with his nomination as chief justice.

HAROLD HONGJU KOH: Was he known as something of a civil libertarian in the St. Paul area?

There's at least some suggestion that he was more liberal as a lawyer than he later became as a judge.

JUSTICE BLACKMUN: I think this probably is true.

He took pride in his activities with the Urban League and some other things in his practice.

I think it is true that he was more liberally inclined as a practicing lawyer than later as a federal judge.

HAROLD HONGJU KOH: Did it occur to you when he was put on the Supreme Court that that might be the last Minnesota seat for some time?

JUSTICE BLACKMUN: There were those who thought it too much as it was.

The only Minnesotan theretofore before the two of us was Pierce Butler, of course.

Chief Justice Burger took the position when my nomination came along that he was a Virginian and not a Minnesotan.

After all, he'd been in Virginia for almost two decades at the time.

This is just some other political winds that were blowing.

But there are some states that have never had a Supreme Court justice.

Missouri, a big state had had only one.

HAROLD HONGJU KOH: Who was that?

JUSTICE BLACKMUN: Charles Whittaker.

HAROLD HONGJU KOH: Were there some cases in the Eighth Circuit that you remember just because they were funny, or unusual, or interesting things happened.

JUSTICE BLACKMUN: You've mentioned most of them that occur to me.

There were one or two funny ones.

I can't give you the names of them, but it was interesting work in the Eighth Circuit.

I liked it.

We had a good group of judges.

We were friendly and supportive of each other.

HAROLD HONGJU KOH: Looking back on those Eighth Circuit years, when they came to a close, did you feel that you were ready to leave the Eighth Circuit, or could you have stayed on for a while longer?

JUSTICE BLACKMUN: I certainly had anticipated staying on there the rest of my service days.

If I remained in the judiciary there was no other place to go except one.

I was content to be on the Eighth Circuit.

I was working up in seniority.

HAROLD HONGJU KOH: How high were you in seniority when you went to the Court?

JUSTICE BLACKMUN: It seemed to me I was about third,--

HAROLD HONGJU KOH: Did the chief judge of the Eighth Circuit have a lot of power over the other judges?

JUSTICE BLACKMUN: --Only in the assignment power, and the selection of panels and so forth.

There was Harvey Johnsen and Charlie Matthes, and as long as he served there was Martin Van Oosterhout, all of whom were senior to me.

HAROLD HONGJU KOH: How long do you think it took you to become comfortable on the Eighth Circuit?

JUSTICE BLACKMUN: Three to five years.

But, that isn't due to the Circuit.

That's due to me.

I found over my lifetime that any new job, any new assignment, always takes me between three and five years to feel what you've called comfortable.

HAROLD HONGJU KOH: Looking back now, how do you think you've changed since those days in the way that you look at the law, look at cases?

JUSTICE BLACKMUN: Well, of course, one always would give an answer to that question as,

"oh, I haven't changed at all. "

but I suppose one does.

I think when one comes to Washington to this Court, as I may have mentioned in some of our earlier conversations, one has to develop his constitutional philosophy.

He has to grow in it.

If that falls within the definition of a change, then one changes, but I like to think of it more as a development rather than a change in outlook.

HAROLD HONGJU KOH: Did you have a constitutional philosophy as a circuit court judge?

JUSTICE BLACKMUN: That's hard for me to answer.

I don't know what a constitutional philosophy is, really.

My approach always was to call the shots as I saw them and not to say this is conservative or this is liberal, and I'll follow those badges.

HAROLD HONGJU KOH: Did you find your role as a lower court judge constraining, or was it comforting to know that there is another court reviewing what you were doing?

JUSTICE BLACKMUN: A little bit of both.

I think the Eighth Circuit at that time felt itself and went out of the way to express itself as being constrained by Supreme Court precedent.

It was not a court that went out on its own and established new and unusual patterns of decision only to be reviewed by the Supreme Court of the United States.

We felt constrained in that respect.

That was not an uncomfortable feeling.

Sometimes it was, that's what the law is, if they want to change the law, those jokers down in Washington are the ones to change it, not we.

Maybe that was a wrong decision, but that was the attitude of the Eighth Circuit at the time.

HAROLD HONGJU KOH: Do you think it's different now?

Do you think that courts of appeals are more likely to strike out on their own?

JUSTICE BLACKMUN: Perhaps.

When you put it that way in the plural.

HAROLD HONGJU KOH: Do you think.

that the Eighth Circuit has remained one of the more conservative or constrained circuits?

JUSTICE BLACKMUN: Well, no.

I wouldn't want to admit that.

I don't think it's so to be characterized, not any more so than the other courts:--

HAROLD HONGJU KOH: What are the main lessons that you think you learned about judging from being on the Eighth Circuit?

JUSTICE BLACKMUN: --That usually, of course, the main one, I suppose, is that there are two sides to every litigated issue that gets that far on the federal courts and that one should not assume otherwise.

One learns sometimes that counsel are very unhelpful.

One learns sometimes that counsel are very helpful.

There's plenty of work to be done.

Of course, we had a happy Court at the time.

One reason was that we lived in the field and came to St. Louis or St. Paul or wherever we met every month, and we were glad to see each other.

It wasn't as though we were all in Chicago the way the Seventh Circuit, for the most part, is, or in New York where the Second Circuit, for the most part, is.

We had a happy group, for the most part.

HAROLD HONGJU KOH: Did you ever feel that there were some cases that you'd prefer not to hear because of the mandatory right to appeal?

Later on at the Supreme Court you had the freedom of a cert denial.

You didn't have that freedom at the court of appeals.

JUSTICE BLACKMUN: The cases were on the calendar, and we had to take them on.

Some were uncomfortable, but all cases have to be decided.

Somebody has to write the opinion.

It's not very easy to take a cop-out, in some respects, and avoid the responsibility of decision-making.

That's the way the system works.

Of course, down here, why, it's the end of the line.

On a court of appeals it isn't.

HAROLD HONGJU KOH: How did you work with your law clerks on the Eighth Circuit?

How did you go about drafting opinions?

JUSTICE BLACKMUN: It depended a good bit on the law clerk.

For the most part, we had just one.

The chief judge, I think, maybe had two.

I always liked to have bench memos prepared by the law clerk.

Maybe too much so.

I overdid that factor as I look back on it.

Not all cases require a bench memo.

They were pretty good law clerks.

HAROLD HONGJU KOH: Would you draft the initial opinion, or would the law clerks draft, or how did you do that?

JUSTICE BLACKMUN: Well, one shifts about.

I started off trying to write all of my own, and then when I had confidence in particular clerks, I would ask them to do the first drafts, and they did it very well.

HAROLD HONGJU KOH: How did you select your law clerks?

Did most of them come from Minnesota?

JUSTICE BLACKMUN: When I was on the Eighth Circuit, most of them came from Minnesota, but not all of them.

I had one disadvantage in that I was living in Rochester, and some applicants weren't very keen about moving down into a smaller town.

They wanted to stay in the Twin City area, but they came down and commuted back and forth over the weekends, I'm sure.

HAROLD HONGJU KOH: 1970, you've often said, was the moment when the ton of bricks fell on you.

I wanted to talk about this period in some detail.

The vacancy on the Supreme Court came about because of problems that Justice Fortas was experiencing.

What are your memories of that?

JUSTICE BLACKMUN: I think I'm correct in this, that vacancy existed for over a year, so that the Supreme Court was an eight person court during that time.

Of course, the president went through the experience of having two of his nominees turned down by the Senate.

He felt, I think, that he wanted a Southern appointment, and finally concluded that with the rejection of two nominees that he couldn't get a southerner of his choice confirmed so he went to southeastern Minnesota.

HAROLD HONGJU KOH: What are your memories of Judge Clement Haynsworth?

JUSTICE BLACKMUN: I never met Judge Haynsworth, but he was a fine judge, there's no question about it.

I think he was caught in a period of changing ethical approaches.

One of the nicest letters I received when I was nominated came from him.

I think the country lost a good public servant when his nomination was rejected.

To his great credit, of course, he stayed on the federal bench and served, I think, splendidly for the rest of his time on the court of appeals.

HAROLD HONGJU KOH: Do you remember what he said to you in the letter?

JUSTICE BLACKMUN: No.

I have the letter, fairly long, handwritten.

HAROLD HONGJU KOH: How about G. Harrold Carswell?

JUSTICE BLACKMUN: Judge Carswell I never met either.

Of course, he was a Nixon appointee of recent vintage, as I remember, hadn't been on the court of appeals very long, and apparently was a different kind of person from Judge Haynsworth, so far as intellect and ability is concerned.

It was a rough time for him.

HAROLD HONGJU KOH: Senator Roman Hruska of Nebraska at one point during Judge Carswell's travails said,

"if he's mediocre, the mediocre people of America need a voice as well. "

Do you remember this period?

JUSTICE BLACKMUN: I do indeed.

Of course, Senator Hruska took a beating for that comment generally, but I think he meant it well.

Those are political overtones that were being battered back and forth.

HAROLD HONGJU KOH: His state is in the Eighth Circuit.

How did the Eighth Circuit judges react to the whole Carswell situation?

JUSTICE BLACKMUN: You mean the judges themselves?

HAROLD HONGJU KOH: Yes.

JUSTICE BLACKMUN: We didn't say a great deal.

I think we all watched it develop and unravel.

Of course, Senator Hruska was a power in the Senate, not only in the Eighth Circuit but in the Senate as well.

He had great seniority and never hesitated to speak his mind.

HAROLD HONGJU KOH: Going back to Justice Fortas, did you ever meet him?

JUSTICE BLACKMUN: Yes, indeed.

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

JUSTICE BLACKMUN: He argued a few cases.

I well remember when I first went on the bench, he was in the well of the court.

We came in, I was over on the left.

His eyes were on me, and our eyes locked, so to speak, and he smiled, and I smiled back.

I've often wondered what he thought at that time.

It was not easy.

HAROLD HONGJU KOH: Did you ever have a private conversation with him?

JUSTICE BLACKMUN: Not very private.

Later, after his death, Mrs. Fortas on occasion had little dinner parties to which we were invited.

She was very friendly.

They were nice little dinner parties.

HAROLD HONGJU KOH: Did she ever talk about how he had reacted to that whole period?

JUSTICE BLACKMUN: No.

HAROLD HONGJU KOH: How was he as an oral advocate?

JUSTICE BLACKMUN: Good.

He was fine.

He was excellent.

No question.

One of the better ones.

HAROLD HONGJU KOH: He could have been chief justice.

JUSTICE BLACKMUN: Came close to it.

Indeed, he was a favorite of President Johnson,--

HAROLD HONGJU KOH: How do you think he would have done?

JUSTICE BLACKMUN: --He would have been a passable chief justice, I'm sure.

He had the ability.

How does anyone do as chief justice?

You really don't know until they serve for a while.

I think he would have served presentably well, despite the things that were said about him.

HAROLD HONGJU KOH: Did the other justices on the Supreme Court ever talk about Justice Fortas and his leaving the Court, or say anything about their feelings about it?

JUSTICE BLACKMUN: Occasional remarks were made, largely of disappointment, that he got into the situation where he was criticized for.

I think it was basically disappointing.

HAROLD HONGJU KOH: Did they ever say anything about Haynsworth and Carswell?

JUSTICE BLACKMUN: No.

I think the answer to that is in the negative.

We didn't discuss it.

HAROLD HONGJU KOH: When did you first have the inkling that you might be the third candidate after Haynsworth and Carswell?

JUSTICE BLACKMUN: I hope I'm recollecting correctly here.

It seemed to me that President Nixon made two statements along the line.

One was that he would not appoint a "crony" to the court.

I didn't know what he meant by that, but I think it was clear enough that he, it meant he would eliminate any member of his cabinet; people such as, William Rogers, Herb Brownell, just swept aside all of a sudden.

Then he made another statement, a little later, to the effect that he believed in elevating from within the ranks of the federal judiciary.

It was at that point I began to be a little concerned because there weren't too many... if he followed Republican appointees to the court of appeals, there weren't too many that were available, assuming again that there was an age limit beyond which one didn't appoint.

I've always felt that point is about age 61 for an associate justice, 65, maybe, for chief.

But, going down circuit by circuit at that time there weren't very many who met those criteria.

There was Ted Goodwin out on the Ninth Circuit, Paul Roney on the Fifth, but Judge Roney had been a very recent appointee to the court of appeals.

So there weren't very many, and that's when I was concerned.

HAROLD HONGJU KOH: So there was no other Southern candidate who was considered at that point for the seat.

JUSTICE BLACKMUN: I suppose so unless one would say that Frank Johnson was a candidate.

Frank was fine judge, as you know.

HAROLD HONGJU KOH: Did people start to call you and say you're under consideration.

JUSTICE BLACKMUN: Not that I recollect.

HAROLD HONGJU KOH: So when did you first start to think it might be a real possibility.

JUSTICE BLACKMUN: About the time that I described when he made the second of those two statements.

I wasn't very happy about it.

HAROLD HONGJU KOH: Did you talk to your family about what it might mean?

JUSTICE BLACKMUN: Yes.

I talked to Dottie, Mrs. Blackmun, about it, yes.

HAROLD HONGJU KOH: What was her reaction?

JUSTICE BLACKMUN: Dottie takes things as they come.

I would say she was neither anticipatory or enthusiastic about it.

She's pretty pragmatic and knows how those things come about.

HAROLD HONGJU KOH: Who were the people who you think were urging your candidacy on the White House?

JUSTICE BLACKMUN: That's hard for me to answer, Professor Koh, because at least a dozen claimed that they were separately responsible for it.

HAROLD HONGJU KOH: Who were some of them?

JUSTICE BLACKMUN: Louis Johnson, the Secretary of Defense, and, of course, there were people who felt that Warren Burger was responsible for it.

Anyone who had any connection with Nixon let me know that he was responsible for it.

HAROLD HONGJU KOH: Did Warren Burger ever tell you that he had done anything?

JUSTICE BLACKMUN: No.

I think he was content to let the facts speak for themselves.

I think at the time he was pleased the nomination came along.

HAROLD HONGJU KOH: When did you first hear from the White House?

JUSTICE BLACKMUN: I was called down there sometime in April of 1970.

And I think it was Lawrence Walsh who called me down.

HAROLD HONGJU KOH: What was his position at the time?

JUSTICE BLACKMUN: I think he was an assistant attorney general at that time.

He had been a federal district judge.

So I went down.

HAROLD HONGJU KOH: So you were not called until the Carswell nomination was defeated?

JUSTICE BLACKMUN: That's correct.

HAROLD HONGJU KOH: But was it shortly thereafter?

JUSTICE BLACKMUN: Very.

Almost immediately.

And this was a look-see kind of a thing, find out what kind of a guy I was and the like.

HAROLD HONGJU KOH: And who did you meet with in Washington?

JUSTICE BLACKMUN: Initially with the attorney general.

HAROLD HONGJU KOH: John Mitchell.

JUSTICE BLACKMUN: Yes.

Mr. Mitchell.

He turned me over to Richard Kleindienst.

The deputy.

HAROLD HONGJU KOH: What was your impression of John Mitchell?

JUSTICE BLACKMUN: It was not a bad impression.

I thought he was, at the time, was able, conducted himself well.

HAROLD HONGJU KOH: What about Kleindienst?

JUSTICE BLACKMUN: For me Kleindienst was a little less impressive, distinctly, well, a good bit less impressive than Mitchell.

Seemed to be a little bit more concerned about his own stature than Mitchell was.

HAROLD HONGJU KOH: How did you feel about these two people later on as they were going through the Watergate trials?

JUSTICE BLACKMUN: A great disappointment, of course, but, hardball politics in Washington.

HAROLD HONGJU KOH: Did you ever speak with them, personally, again after this?

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

HAROLD HONGJU KOH: Did Kleindienst deal with you himself, or did he turn you over to somebody else?

JUSTICE BLACKMUN: He dealt with me himself for a good bit.

Both the Mitchell and Kleindienst interrogations were sort of a visiting.

session trying to find out what kind of a guy I was and whether they were going to get in trouble and have a third rejection, which they didn't want to have.

HAROLD HONGJU KOH: Did they seem to know much about you?

JUSTICE BLACKMUN: I think they knew as much about me as I knew about myself, yes, they were thoroughly prepared.

HAROLD HONGJU KOH: Were they focused on your opinions or more on your personal life?

JUSTICE BLACKMUN: A little bit of both, I think, and rightly so.

HAROLD HONGJU KOH: What were some of the questions they were asking you?

JUSTICE BLACKMUN: That's hard to remember.

We covered the waterfront, generally.

They asked some questions about opinions.

They weren't objectionable in their inquiries at all.

HAROLD HONGJU KOH: You never felt that they had run across some trouble spot or something that might potentially hurt the nomination?

JUSTICE BLACKMUN: The only troublesome spot which came up, and of which I was very much aware of, was the fact that I had a couple of hundred shares of Ford Motor stock, and had sat on some cases involving Ford Motor Company, I think four, two of which I voted in favor of Ford Motor Company, and two of which I voted adversely to Ford Motor Company.

But times were changing.

One would not do that nowadays.

On the court of appeals, whenever we recused ourselves it was a nuisance to the chief judge because he had to get somebody else to take our place, and that meant he usually went to somebody, some district judge sitting on the Eastern District of Missouri in St. Louis, took him out of his regular routine and had him sit on a case in the court of appeals.

So that we hesitated to do this.

He always groused about it, whoever was chief judge at the time.

HAROLD HONGJU KOH: In particular in the Ford Motor case, Harvey Johnsen spoke to you about the case.

JUSTICE BLACKMUN: I raised it with him, yes, indeed.

I think he was either unaware of it or had forgotten about it or something.

Harvey Johnsen was the chief judge, and it seems to me he either wrote or testified at the time.

HAROLD HONGJU KOH: He said that he encouraged you to sit on the case.

JUSTICE BLACKMUN: He did indeed, and was thoroughly annoyed when I suggested recusal for any case.

He said,

"don't you see it's upsetting my assignments? "

He didn't like to have them upset.

HAROLD HONGJU KOH: One thing that is very striking about the confirmation hearings is that you got tremendous support from the Eighth Circuit judges.

They seemed very proud of the fact that you had been nominated.

Judge Van Oosterhout wrote a very strong letter expressing the support of everybody in the court.

Do you remember the reactions among the Eighth Circuit judges as your name was being bandied about?

JUSTICE BLACKMUN: I was surprised at the enthusiasm that they demonstrated.

They were all good friends, but on the other hand, I suppose any one of them would naturally wonder, why not I?

why wasn't I nominated?

or something like this.

But I saw nothing of that type of thing.

It was completely and enthusiastically supportive, I'm always indebted to them for that reaction.

HAROLD HONGJU KOH: Were any of their names mentioned during this period?

JUSTICE BLACKMUN: As possible nominees?

No, I don't think so.

HAROLD HONGJU KOH: After you spoke to Kleindienst, did you speak to.

anybody else in the Justice Department, or was that pretty much it?

JUSTICE BLACKMUN: No, I think, as I recall, and, my goodness, it was a long time ago, I was turned over to two interrogators.

One of them was Johnnie Walters, and Johnnie is his name, Johnnie M. Walters, who was assistant attorney general in charge of the tax division.

He asked a lot of questions about tax law and the like.

Later, he and Mrs. Walters became good friends of Dottie and me.

We haven't seen them for a long time now, but I have the utmost respect for Johnnie Walters.

HAROLD HONGJU KOH: He asked you about your tax returns?

JUSTICE BLACKMUN: Yes.

As a matter of fact, he came out to Minnesota at the time I returned... we didn't go out together... because I hadn't brought my tax returns with me to Washington.

He went over all of them.

I still have his report on those tax returns.

He said that this nominee is... I think I shouldn't say this... but I think he said, this is as clean as a whistle, and commented on the fact that in one tax report I had reported five cents of income from my old law office, about ten years after I had left, it was still coming in, a little bit.

He was impressed by my nickel inclusion.

HAROLD HONGJU KOH: Did you do your own tax returns?

JUSTICE BLACKMUN: Yes, always.

Always have.

HAROLD HONGJU KOH: Am I right that there was at least one point where there was a suggestion of a mathematical error, and then you went back and proved that you were right?

JUSTICE BLACKMUN: I think that's probably right.

There was another point where there was a mathematical error a hundred dollars where the error was against me, and I went back and corrected that and got a hundred bucks back.

The other interrogator of the two was none other than William H. Rehnquist, Jr.--

HAROLD HONGJU KOH: That was the first time you had ever met him.

JUSTICE BLACKMUN: --Yes, I think so.

HAROLD HONGJU KOH: What was your impression of him?

JUSTICE BLACKMUN: I was impressed.

He was able, articulate, and knew what he was asking about.

I don't remember the questions he asked me particularly, but the interrogation by, Rehnquist and Walters was a pleasant interlude.

It went on for some time.

HAROLD HONGJU KOH: Did you know anything about Rehnquist, his background at the time?

JUSTICE BLACKMUN: I suppose I have to answer that in the negative, really.

HAROLD HONGJU KOH: He was quite a young guy at that point.

JUSTICE BLACKMUN: Yes, and, of course, he was assistant attorney general in the office of legal counsel.

Young, and had clout, too.

HAROLD HONGJU KOH: And what kind of issues... I assume he wasn't asking you about tax issues.

JUSTICE BLACKMUN: No.

Everything else.

Johnnie Walters did the tax work.

HAROLD HONGJU KOH: Was he focused on any aspects of your jurisprudence.

JUSTICE BLACKMUN: I suppose yes.

I really have forgotten a good bit about it.

He didn't ask any offensive questions.

He asked questions I thought were reasonable questions to ask, and entirely appropriate.

HAROLD HONGJU KOH: Did you hit it off personally?

JUSTICE BLACKMUN: I thought we got along all right.

That's a long time ago.

Now he's chief justice.

HAROLD HONGJU KOH: Do you ever talk with him about that first meeting.

JUSTICE BLACKMUN: Well, I kid him a lot about it at times, during conference when we discuss a case, and he'd go one way, and I'd go the other way, I've often said,

"You surely must regret having approved me back in 1970. "

He rose to the bait, said of course he regretted it.

But, we've had a lot of fun in that respect.

HAROLD HONGJU KOH: Do you think he's changed in his personality or temperament?

JUSTICE BLACKMUN: I don't think so, fundamentally.

Like anyone else he becomes more like a chief justice every day, but, now don't ask me to explain that, that has to stand on its own feet.

It's not easy being chief.

HAROLD HONGJU KOH: Did he have a good sense of humor back then?

JUSTICE BLACKMUN: I would say so.

He's a charming guy when you're with him alone, at a dinner table or something.

HAROLD HONGJU KOH: Have you socialized with him very much?

JUSTICE BLACKMUN: No.

I wouldn't say so.

Occasionally.

As you know, we have court dinners on occasion.

People often have asked, did you have close, intimate friends in the Court during your twenty-four years?

My answer to that always has been in the negative.

I think we see too much of each other to develop close friendships.

The only exception to that would be, in my view, the friendship that developed between Potter Stewart and Justice Powell, but they had a lot of things in common.

HAROLD HONGJU KOH: Last question before they change the tape.

After you met with Rehnquist and Walters, were you pretty confident that the nomination would go forward, or were you just completely up in the air?

JUSTICE BLACKMUN: I had no knowledge of it.

I suppose I was up in the air, and I didn't feel one way or the other about the thing.

I think there were too many personal aspects to it to... what it would do to my family and our living and the like... to be too deeply concerned.

HAROLD HONGJU KOH: After we take up again with the new tape, we'll talk about your meeting with President Nixon.

Break