Transcript

HAROLD HONGJU KOH: Mr. Justice, after you returned to Rochester from Washington, after your initial meetings with the Justice Department officials, was there a lot of media discussion about your possible nomination, or was it still pretty quiet at that time?

JUSTICE BLACKMUN: I think, by and large, it was fairly quiet.

There was speculation of one kind or another.

HAROLD HONGJU KOH: Did you ever hear that others were similarly interviewed, or were you the only one, do you think?

I don't know the answer to that.

I remember one rather interesting incident that took place on the plane.

Maybe I shouldn't discuss this.

Mr. Justice, this is all confidential.

It's for history.

JUSTICE BLACKMUN: Anyway.

I had stayed at the Cosmos Club when I was down there, and the media never found out where I was, although the F.B.I. did.

HAROLD HONGJU KOH: Were you a member of the Cosmos Club at that point?

JUSTICE BLACKMUN: I was a non-resident member of the Cosmos Club.

A number of us... it goes back to my Mayo days actually.

It was a good place to stay, less expensive than Washington hotels, more isolated and private.

Anyway, I was finally dropped off there, and I was hoping that they'd take me out to the airport.

I had a five o'clock plane, or something, but they didn't.

They just dropped me at the Cosmos Club.

I grabbed my bag and scrounged for a cab.

Fortunately, I found one.

They're not easy to get out there.

I got to the airport just in time, and went in, sat on an aisle seat back in the steerage.

Pretty soon I was putting my bag underneath the seat in front of me, and a couple of feet came up, stomped right by me and looked to the other side.

The occupant of the seat on the other side said to the man standing there,

"Who is this guy, Blackmun, whose photograph is in today's paper? "

And the answer was,

"Oh, he's just another old conservative. "

And here I was underneath.

I could tell who it was.

What do I do?

Do I stay underneath, or do I make my presence known?

I finally pulled on his trouser leg, and said, "Walter, I'm here".

It happened to be Senator Mondale.

Then the hostess said,

"Will everyone please take his or her seat? "

"Senator Mondale, will you please return to your seat? "

He said,

"Harry, I'll be right back. "

Sure enough, as soon as we were airborne he came back.

HAROLD HONGJU KOH: Who was the fellow who'd asked him the question?

JUSTICE BLACKMUN: He turned out to be a fellow named Kelly, who was a large contributor, as I understand it, to the Mondale campaign funds.

He ran a distributorship out of Bloomington, Minnesota, But the senator came back and said,

"I want you to know that I'm all for you, but I can't always say so in public. "

I said,

"Walter, I understand perfectly well. "

So it worked.

HAROLD HONGJU KOH: How did you know him?

JUSTICE BLACKMUN: I'd known him, of course, from practice days in Minneapolis.

He was a member of a very enterprising group of young lawyers who had graduated from the University of Minnesota Law School, who were interested in politics and did extraordinarily well.

He was one of them.

Earl Larson, later a federal judge, was another one.

HAROLD HONGJU KOH: He must have been only recently elected to the Senate at that point.

Yes, I think so.

I think it was his first term.

Had you had any contact with him before that point as a senator?

JUSTICE BLACKMUN: I had no contact with him as a senator as such, no.

HAROLD HONGJU KOH: Do you think he should have been president?

JUSTICE BLACKMUN: He was close to it, wasn't he.

He wanted it.

He would have been a good president.

HAROLD HONGJU KOH: How was he as attorney general of Minnesota?

JUSTICE BLACKMUN: I think he was a lot better than some of his predecessors.

Walter Mondale was always a person of integrity, and I respected him.

HAROLD HONGJU KOH: In those days, did you have any Republicans in Minnesota who were pushing for you with the White House?

JUSTICE BLACKMUN: I wouldn't say so.

I've never been politically active at all, and I was "good-old number three" choice.

I think the president was glad to find somebody who eventually was confirmed.

The Senate was raw and bleeding, and the president was disturbed.

It finally solved the problem.

HAROLD HONGJU KOH: When you got back home, did you talk about this with Mrs. Blackmun?

What was her reaction to the whole thing?

JUSTICE BLACKMUN: As I indicated before, she's pretty pragmatic and would take it in stride.

On the other hand, if it meant we were going to Washington, I think she'd be enthusiastic about that too.

HAROLD HONGJU KOH: Did you talk to your daughters at this point?

What did they feel about it?

JUSTICE BLACKMUN: Yes, we kept in touch with them.

I remember when the nomination did come through, everyone of them came home.

They were scattered at school and other places.

I didn't ask them to come, but they were all there when I got home.

HAROLD HONGJU KOH: So pretty shortly after that, you then heard formally about the nomination I take it.

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: Where were you at the time?

JUSTICE BLACKMUN: We were sitting in St. Louis on a regular panel, and a note came in to me in mid-morning to the effect that I'd been nominated.

We finished the morning's cases and then went out... in those days we had to go out from the courtroom into the robing room and then out into the corridor to go down to our respective chambers.

The corridor was filled with reporters.

It was a fairly narrow corridor.

I ran into that kind of thing for the first time.

HAROLD HONGJU KOH: What were your colleagues' reactions that day?

JUSTICE BLACKMUN: Well, the panel I was sitting on was presided over by Judge Van Oosterhout.

He immediately came down and said,

"I think you should go home. "

"And don't worry about the cases, we'll take care of them. "

He did the same thing about other pending argued cases that had not yet been decided.

It was a great boon to have him take things over.

He said,

"Don't worry about Eighth Circuit stuff, we'll take care of it. "

HAROLD HONGJU KOH: How did your law clerks feel about the whole thing?

JUSTICE BLACKMUN: I don't know.

I had one law clerk with me in St. Louis together with a secretary, Mary O'Morro.

We all caught a Branniff plane and went back to Rochester.

As we came in on the tarmac, there were a lot of people standing around.

Dottie was there, arm in arm with Nina Totenberg, which upset me at the time a little bit.

HAROLD HONGJU KOH: How did she find out about it?

Did you know Nina Totenberg before?

JUSTICE BLACKMUN: No, not really.

She was there.

She was on the way up, you know, trying to make a name for herself.

She was there, Walter Cronkite had a stringer there, and some others.

HAROLD HONGJU KOH: Were you scared?

JUSTICE BLACKMUN: Well, I didn't know exactly what was going on.

I wouldn't say I was scared, but it was a bit of a moment when we landed.

HAROLD HONGJU KOH: How much time did you have to prepare for the confirmation hearings?

JUSTICE BLACKMUN: It wasn't very long.

It seemed to me that, I think the nomination was the twelfth of April or somewhere there, and the confirmation hearing was about the fourteenth of May.

HAROLD HONGJU KOH: At what point did you meet with Nixon?

Did you go back out to Washington then?

JUSTICE BLACKMUN: I think it was when I... it might have been that earlier trip, because I know I went into the Oval Office with Mr. Mitchell, and the president was on one side of his desk, and Mr. Mitchell was on the other.

They waved me into a chair at the end of the desk.

The two of them conversed, but very formally, which surprised me, because, after all, they had been law partners.

I would have thought they would have done this on a first name basis, but it was Mr. President and Mr. Attorney-General.

The question finally was asked by the president.

He said, "Do you have a recommendation"?

Mitchell responded,

"Yes. "

"That the judge receive the nomination. "

Then there was discussion between the two of them as to when it should be announced.

As I recall, this was a Thursday or Friday.

At the time one of the Apollo ventures was in trouble, and they were trying to get it back.

It was limping back.

There was concern for a while that it wouldn't make it.

It was decided that the nomination would not be announced until after that problem was resolved.

Well, they got it back all right, fortunately.

HAROLD HONGJU KOH: All this conversation was just going on with you just sitting there.

You were not saying anything.

JUSTICE BLACKMUN: I didn't say anything.

I just sat there, and they were good enough to offer me a cup of coffee, which I accepted, I was glad to have a free cup of coffee, I guess.

Then Mr. Mitchell, as I remember, was called out of the room.

HAROLD HONGJU KOH: Deliberately, do you think, or just happenstance?

JUSTICE BLACKMUN: I think it was happenstance.

The president got up and walked over to the door looking out on the Rose Garden, and said, "Come on over here".

So I went over, and we looked out.

He asked a couple of questions, among which, I'll never forget this, he said,

"What kind of a woman is Mrs. Blackmun? "

I said, "What do you mean"?

He said,

"She will be wooed by the Georgetown crowd. "

"Can she withstand that kind of wooing and resist it? "

I said I thought she could.

Then we went back and sat down.

He turned to me and he said,

"Judge, what are you worth? "

I said,

"What do you mean, what am I worth? "

"How many dollars do you have? "

--which annoyed me at the time.

I didn't know this was a factor to be considered, and it raised the hackles a little bit.

He noticed my discomfort, and then I got a little lecture about how broke he had been when he left the vice-presidency and was strapped for funds.

So I was on the receiving end of that.

Otherwise, it was a happy enough conference.

HAROLD HONGJU KOH: Did he ask you anything about your daughters?

JUSTICE BLACKMUN: Yes.

As I remember, there were some general questions as to how old they were, how active they were in the student protests of that time, particularly, and could I communicate with them, and the like.

A question which was repeated later by Senator Kennedy in the formal hearings.

HAROLD HONGJU KOH: What was your impression of Nixon?

Did he strike you as cold or warm?

Did you have much of a personal interaction?

JUSTICE BLACKMUN: I suppose more on the cool side than the warm side, but I certainly came away with the feeling he was able, articulate.

He was president,, and he was determined to be president.

HAROLD HONGJU KOH: Did he ask you any questions about your judicial philosophy?

JUSTICE BLACKMUN: No, because I think that had been gone over pretty well by the conversation between him and Mr. Mitchell.

I think he felt assured that if the attorney general said okay, that he wouldn't go into it any further.

HAROLD HONGJU KOH: Did he actually ever say to you,

"I'm going to nominate you to the Supreme Court, or offer you the position, or in some way make a formal statement to that effect? "

JUSTICE BLACKMUN: No.

Other than Mr. Mitchell made the recommendation to him, and immediately they went into the timing of it.

HAROLD HONGJU KOH: So as for timing, you did not then go out in his presence and have it be announced at any point.

JUSTICE BLACKMUN: Not that day, no.

That was the day when the conversation about "who is this guy Blackmun" took place.

HAROLD HONGJU KOH: What did you do to prepare for the confirmation hearings?

JUSTICE BLACKMUN: I didn't know what to do, and no one was instructing me.

I did go over all of the opinions I had written, that is, more or less, at least I read the headnotes.

There were some, that I thought were obvious materials for questions.

I had no idea how the hearing would go.

HAROLD HONGJU KOH: So you had no liaison or coach from the Justice Department, no preparatory hearings or anything like that?

JUSTICE BLACKMUN: No.

HAROLD HONGJU KOH: Was there intense media coverage during this period that you were doing the preparation?

Were you being hounded by reporters during this period?

JUSTICE BLACKMUN: To a degree, yes.

But I certainly tried to resist it as best I could.

HAROLD HONGJU KOH: Were they camping out in front of your house or anything like that?

JUSTICE BLACKMUN: Not in front of the house, but they were out in front of my office.

HAROLD HONGJU KOH: Did you give them any interviews or anything?

JUSTICE BLACKMUN: No.

HAROLD HONGJU KOH: And how about your mother?

Was she getting any inquiries during this time?

JUSTICE BLACKMUN: Yes.

As a matter of fact, I think Nina Totenberg interviewed her, which somewhat annoyed me.

I didn't want mother's privacy to be interfered with, but Nina on the other hand was an investigative reporter, and I suppose it Was fair game.

HAROLD HONGJU KOH: What did your mother say?

JUSTICE BLACKMUN: She handled herself pretty well.

I didn't worry about mother.

HAROLD HONGJU KOH: How about your kids and Mrs. Blackmun, were they interviewed?

JUSTICE BLACKMUN: They must have been.

As I say, they immediately came home with the nomination and were pestered a little bit at the time.

I don't recall anything adverse that happened.

HAROLD HONGJU KOH: When you went out to the confirmation hearings, what do you remember about that whole experience?

Did you stay at the Cosmos Club again?

JUSTICE BLACKMUN: Yes.

I stayed at the Cosmos Club.

HAROLD HONGJU KOH: And was Mrs. Blackmun with you?

JUSTICE BLACKMUN: No, she was not.

And I've always regretted that.

But I advised her not to come, because I thought it might be a little rough after the Haynsworth and Carswell setup, and I made a mistake.

She should have been there.

She deserved to be there at the time.

But so it was.

HAROLD HONGJU KOH: Now one of Senator Eastland's staff people from the Judiciary Committee was Jim Ziglar, who later was your law clerk.

What role did he play in this stage of things?

JUSTICE BLACKMUN: Mr. Ziglar was almost an administrative assistant to Senator Eastland, who was chairman of the Judiciary Committee.

Jim was from Pascagoula, Mississippi, so it was rather a natural appointment.

But he was most helpful, I think, in steering me through the initial stages of the inquiry.

Senator Eastland, of course, everybody called him "The Chairman".

They didn't call him Senator Eastland.

It was always "The Chairman", and he was a very potent and imposing figure.

HAROLD HONGJU KOH: Did you go up to the Hill and make courtesy calls?

JUSTICE BLACKMUN: I did indeed.

I spent an entire day in the company of a man from the Department of Justice named Duffner, who's still there, actually.

I wasn't very enthusiastic about this.

But, evidently, what they did then, and I think they still do it, is when a nomination is coming along, to ask each member of the Judiciary Committee, would you like to interview the nominee?

And I was told that every one of them said yes, they would, and this obviously was in part due to the Haynsworth-Carswell battle.

So I spent a whole day calling first upon one and then upon another of the Judiciary Committee.

We didn't do it in any particular order, that is, Democrats first or Republicans first, or anything of that kind.

But, it was a long and a wearing day.

I never did get lunch, and they didn't offer anything.

But, Mr. Duffner got a doughnut at every congressmen's suite.

I think he must have put on about four pounds that day, and I lost about four pounds.

But it was interesting.

Each senator conducted the hearings in a different way.

Senator Thurmond called his entire staff in, and they all sat around on the floor while he asked questions.

Others, such as Senator Cook, it was all a one-on-one interview.

So it was an experience for me.

HAROLD HONGJU KOH: What about Senator Birch Bayh?

He had been the main interrogator of Carswell.

Did he have a lot to say?

JUSTICE BLACKMUN: Yes, as I remember, I came away with a sense of antagonism on his part.

I think he was suspicious of all these nominees and, as you say, had a great deal to do with the other two.

But I had to respect him.

He was able.

He was interested.

He was a valuable member of the Judiciary Committee.

HAROLD HONGJU KOH: How about Senator Kennedy.

He later actually was quite supportive of you, although at the time he may have thought that you were more conservative than he would've liked.

JUSTICE BLACKMUN: I remember when we reached his office on this general calling around day, I entered into the ante-room, I felt, perhaps wrongly, but anyway, I felt a distinct sense of hostility.

But, then I went into his inner office and had what I thought was a very pleasant conversation with him, generally.

We had some things in common.

Both had gone to the same law school and the like.

HAROLD HONGJU KOH: That was only two years after the death of Bobby Kennedy, and he was still being very much mentioned as a presidential candidate.

JUSTICE BLACKMUN: It was indeed.

I remember there was a photograph in his office on the window ledge of, I think, the Senator and Bobby, and I walked over to it, and he carne over, and we sat and talked about that photograph for a while.

I thought I came out of that conversation with Senator Kennedy feeling fairly comfortable.

He was nice to me.

HAROLD HONGJU KOH: Have you subsequently had many personal interactions with Senator Kennedy?

JUSTICE BLACKMUN: No, not really.

I wouldn't say any more than any other senator.

Of course, at the hearings, the formal hearings as such, he zeroed in on me about my ability to communicate with young people at the time.

"How do you get along with your daughters? "

"Can you communicate with them? "

"Are they with you? "

And so forth.

HAROLD HONGJU KOH: That was really one of the most personal exchanges of the hearings, In fact, talking about your daughters, you mentioned that sometimes they would call you an "old crock".

How did your daughters react to that testimony after the fact?

JUSTICE BLACKMUN: Oh, they didn't mind it.

They all did it with a smile on their face, and we understood each other.

It's a term I use on myself.

HAROLD HONGJU KOH: What do you think he was driving at with these questions?

JUSTICE BLACKMUN: I think he was concerned about the then-younger generation.

And rightly so.

This was right after the Sixties.

This was 1970.

Fortunately, one of our daughters was a Massachusetts citizen and thought a good bit about Senator Kennedy, and I reminded him of this.

HAROLD HONGJU KOH: Did you have much support from Senator Mondale or Senator McCarthy at the hearings?

JUSTICE BLACKMUN: At the hearings, indeed I did.

Much to my surprise because both were Democrats, and my nomination was by a Republican president.

I didn't know what position they might take, but they were both very kind and supportive generally.

I came away with a feeling that they were not acting as a team, they were pretty independent of each other.

It was a tough decision for them, I'm sure.

I try to put myself in their place.

To have this unknown nominee by a Republican president thrown out from their home state.

HAROLD HONGJU KOH: Two other congressman showed up to testify.

Albert Quie.

JUSTICE BLACKMUN: Albert Quie was the congressman at that time from southeastern Minnesota where the city of Rochester was.

He showed up with the senators.

He was a Republican.

HAROLD HONGJU KOH: Did you have much of a relationship with him, before?

JUSTICE BLACKMUN: I knew him beforehand.

Both as a practitioner, as I recall.

He was from, of course, southern Minnesota.

We were not intimate friends, but at least I knew him.

HAROLD HONGJU KOH: And then Clark MacGregor also came.

JUSTICE BLACKMUN: Yes.

Clark MacGregor, of course, was a congressman from a district that rather took in the suburbs of Minneapolis.

I had known Clark for a number of years, both as a practitioner out in the Twin City area, and he was active in politics.

I was not.

HAROLD HONGJU KOH: In retrospect, did you think that the hearings were hard or difficult?

How did you feel about them at the time?

JUSTICE BLACKMUN: I thought they were a strain because one is out there sitting alone at a table, and there's a horseshoe of senators that you're facing, Democrats on one side, then Republicans on the other.

One's whole life is investigated, really, It took me a little while, not very long, to realize that some of the questions, in fact, weren't questions at all, they were speeches.

They weren't particularly directed to me, but were directed more or less to their political counterparts or opponents on the other side of the aisle.

Once I realized that, I was more comfortable and settled down and let them go at it.

It isn't an easy kind of thing to go through.

Everything hangs out, so to speak.

Any question is fair.

HAROLD HONGJU KOH: Did the F.B.I. ever investigate you?

That's become a common practice.

JUSTICE BLACKMUN: Yes.

They did.

I remember when I checked into the Cosmos Club on one of these trips, as I said, the politicians never found out where I was, but the F.B.I. did.

I was registering, and a hand came around with an ID in front of me, an F.B.I. ID, and said,

"I want to speak to you. "

I said,

"May I not go up to my room and unload these bags? "

He said,

"No, I want to speak to you right now. "

So we went over in a corner, and he asked me a lot of questions.

HAROLD HONGJU KOH: And that report went to the Judiciary Committee, you think?

JUSTICE BLACKMUN: I'm sure it did, yes.

I suppose it's in the hearings.

They work fast.

The agent was complaining that they were under distinct pressure to do this in a hurry.

He said we like to have more time usually.

HAROLD HONGJU KOH: Now there's a fair amount of questioning at the hearings about the Ford Motor Company case and some other cases involving small amounts of stock.

Did you ever think that those were going to be a problem?

JUSTICE BLACKMUN: Sure.

Because they had been a problem with Judge Haynsworth.

But I thought the way to attack it was to bring it out myself, which I did, and there it was.

Chief Judge Johnsen even supported it.

I didn't know what it would do, but there it was.

There wasn't anything to hide.

HAROLD HONGJU KOH: Did you feel that people were trying to label you as a conservative or strict constructionist?

JUSTICE BLACKMUN: Oh, sure.

Always those labels came out.

I suppose even the president felt that I had to be a conservative as distinguished from a liberal.

HAROLD HONGJU KOH: In fact, reading your confirmation hearings there are a lot of themes that later emerge in your Supreme Court decisions.

In particular, you mention the "little people" and your concern for the "little people".

Was that something that you were interested in getting on the record at that point?

JUSTICE BLACKMUN: Not particularly interested in getting on the record, it just came out automatically, I think, because that was just part of my philosophy.

HAROLD HONGJU KOH: When did you hear about the Judiciary Committee's vote?

Was it soon thereafter?

JUSTICE BLACKMUN: I remember it was seventeen to nothing, and, yes, it was very soon thereafter.

HAROLD HONGJU KOH: Did the Senate's vote follow shortly after the committee vote?

JUSTICE BLACKMUN: There was a period, I'm guessing now, it seems to me, of about two weeks, which is essential because the reports have to be written up.

The committee report was written up, and maybe there were some side concurrences of one kind or another, and if there are any dissents, why that's when they're written up.

So you have to wait for it, before it goes to the Senate floor.

HAROLD HONGJU KOH: And then that vote was also unanimous.

JUSTICE BLACKMUN: Yes.

Ninety-two to zip, as I recall.

HAROLD HONGJU KOH: How did you feel about that?

I felt very gratified, really, that there wasn't this terrible conflict.

I think the Senate was glad to get it behind them.

They'd been on the barbed wire with the other two, and I suppose the president was glad to get it behind him, get the thing over with and have a nine person Court again.

When did it really hit you that you were going to be on the Supreme Court?

JUSTICE BLACKMUN: I don't know whether I can answer that, as to when it really hit me.

It certainly made a lot of difference in our private lives, in the family... that we'd go to Washington and face we knew not what.

HAROLD HONGJU KOH: Was there ever any discussion about your simply waiting until the beginning of the next term?

JUSTICE BLACKMUN: No.

The chief justice, Burger at the time, asked me to come down as soon as I could.

He said there are a number of cases here that we need the ninth vote on.

As I remember, I hope I'm right in this, I think there were about forty-seven cases which they had described as "hold for nine", that is, hold for nine justices.

Nobody told me, but what that meant to me was that the vote, probably, in most of them was five to three, with three votes being to grant, and if I were to vote to grant, it would mean the case was taken.

So I had to go over those things.

HAROLD HONGJU KOH: Were they sent to you in Minnesota?

JUSTICE BLACKMUN: Yes, they were.

As a matter of fact, I think the day after the confirmation two huge mailbags arrived from the chief justice full of the papers on those cases.

I called him up and I said,

"Say, I have Eighth Circuit material I have to get rid of yet, and you send this stuff out to me. "

His response was,

"You get at this stuff and let the Eighth Circuit case go into a secondary position. "

which maybe was right.

But, I think that was the reason that I went down and voted on those cases.

As I recall the first two weeks of the October session that year, 1970, were cases of that type that had been held for nine or more rearguments.

HAROLD HONGJU KOH: So you voted to grant cert in about how many of them, would you say?

JUSTICE BLACKMUN: Oh, I'm guessing, maybe seventeen out of the forty-seven, something like that.

There were some that needed it all right.

HAROLD HONGJU KOH: How were you finishing up your Eighth Circuit work at the time?

Did you have much?

JUSTICE BLACKMUN: Well, Judge Van Oosterhout came to my rescue, and, as I indicated before, he said, forget about the Eighth Circuit cases, we'll take it on, including those that have been assigned to you from former sessions and haven't been out yet.

Indeed, that's exactly what he did.

He was a great help, and, in effect, relieved me of nearly all of my Eighth Circuit burden at the time.

HAROLD HONGJU KOH: So how did you go about wrapping up your affairs in Minnesota?

Did you put the house on the market right then?

JUSTICE BLACKMUN: I didn't have much trouble with the house because our next door neighbor had let us know ten years before that if we ever sold it, he wanted it.

So I had a potential buyer right next door, and it was just a question of how much.

And we worked that out.

I thought a while of keeping it, but I didn't want to be an absentee landlord, and maybe that's just as well.

Of course, it's cost me money in the long run.

HAROLD HONGJU KOH: How about finding a place to live in D.C.?

JUSTICE BLACKMUN: Well, it was not easy.

We found somebody who showed us around all over the place.

We finally ended up where we still are, in the Normandy House over in Rosslyn, kind of a little commercial area.

Dottie and I moved in there temporarily twenty-four years ago, and we're still there.

Fortunately, we didn't have a problem that some justices do of having younger children, or Rosslyn would not have been the place for them.

But it was convenient, and we liked the apartment, and there we still are.

HAROLD HONGJU KOH: How did Mrs. Blackmun feel about the move at this point, now that it was a reality?

JUSTICE BLACKMUN: Well, I didn't get any feeling of despair or discomfort.

I think it was exciting for her.

We came down in June, and Chief Justice Burger said you need be here only a couple of days.

Well, we were there well into July.

Then went back and settled things out and returned on the, as I recall, the 17th or 19th of September for good.

HAROLD HONGJU KOH: How about your office staff, your secretary, and the clerks?

JUSTICE BLACKMUN: I had hired a clerk for the Eighth Circuit duty, and asked him whether he wanted to go to Washington.

He was enthusiastic about that.

His predecessor... we were entitled to two at the time, as I remember had made plans to get out of Washington.

He wanted to get back into Minnesota.

But I said,

"Mike, do you want to stay on.... "

HAROLD HONGJU KOH: --This is Mike LaFond.

JUSTICE BLACKMUN: Mike LaFond... and have another year here?

"They reversed gears and stayed on a second. "

"It's one of the two exceptions that I've made for two year clerkships. "

"I think they enjoyed being there, and it certainly helped out to have a clerk that had been there for a year. "

HAROLD HONGJU KOH: And whose chambers did you occupy when you went to the Court?

JUSTICE BLACKMUN: I took over the chambers that are now occupied by Justice Brennan, that is, the chambers right in between the two stairways.

I suppose Justice Fortas had been in there.

It's a smaller chamber than others, because it's restricted by the stairways.

But I was there for a while until I moved where I ended up.

HAROLD HONGJU KOH: Did you actually sit on any argued cases in that term in June, or you just went to conferences to vote on the cases?

JUSTICE BLACKMUN: I just went on the conference and voted on the cert petitions that were pending and voted on those "hold for nine", and then sat there as they announced decisions in argued cases.

Each time, of course, they would announce that

"Justice Blackmun took no part in the consideration or decision of this ease. "

Case after case after case, and I felt as though I hadn't done any work at all.

HAROLD HONGJU KOH: When did you actually get sworn in?

JUSTICE BLACKMUN: On the ninth day of June, 1970.

HAROLD HONGJU KOH: What kind of ceremony was held?

JUSTICE BLACKMUN: As I remember, it was in an open court.

There are two oaths to take, of course.

HAROLD HONGJU KOH: What are the two oaths?

JUSTICE BLACKMUN: There's a constitutional oath, and then there's the judicial oath.

Often they're administered separately, usually now we do one in the privacy of the justices and the other one in open court.

HAROLD HONGJU KOH: Did Nixon come to watch you be sworn in?

JUSTICE BLACKMUN: No.

He did not.

Chief Justice Burger, after the swearing in, insisted that we go to the White House.

So he and I went down, and visited a minute with the president, told him the labors of the nominee were over with, as far as he was concerned.

HAROLD HONGJU KOH: Did he seem happy?

JUSTICE BLACKMUN: I think so.

Although he didn't know me, of course.

But I think he was gratified that this wrangle was behind him.

HAROLD HONGJU KOH: When did you first meet the other justices?

JUSTICE BLACKMUN: I think probably it was the day I was sworn in.

I remember walking into the robing room, getting robed, and then into the conference room where they were standing around in a circle.

We all shook hands, as we always do.

They welcomed me, I guess, didn't know who this guy was.

HAROLD HONGJU KOH: How many of them had you met before?

JUSTICE BLACKMUN: White I knew because he'd been circuit justice for the Eighth Circuit, and always came to our conferences, and of course, I knew Chief Justice Burger.

I think that's about it, although I must have met some of them on other occasions, circuit conferences, elsewhere.

HAROLD HONGJU KOH: In the time we have left, I'd to just go through each of the Justices who was on the Court at the time and your impressions of them.

Starting with seniority, Hugo Black.

JUSTICE BLACKMUN: I had one year with Hugo Black, and I regard it as a very profitable year for me.

I learned a lot from Justice Black.

He was a canny, experienced person, who of course with all of his Senate years, made him smart in the way of knowing how government worked.

I think he also enjoyed being on the Court.

But he often used his senatorial expertise in his voting, in the way he'd maneuver his voting.

But, I learned a lot from Hugo in the way of analyzing cases and all the rest.

I respected him highly, and it was sad to see him deteriorate toward the end of that term, as he did deteriorate very rapidly, and, of course, retired in September of 1971 and died within a week after that.

HAROLD HONGJU KOH: Did you have much private conversation?

JUSTICE BLACKMUN: Not a great deal.

A little.

I remember his coming down one time, I think it was the first opinion I circulated.

He called up and said Harry,

"I'm coming down to see you about this opinion. "

I said,

"Well, stay where you are. "

"You are the senior, I'll come to your chambers. "

He said,

"You stay where you are. "

"I'll come down. "

"I said I'm coming down. "

And down he came.

I stood at the door and watched him shuffle down the hall.

He was holding a copy of my opinion, like this, as he walked in the door, and he said,

"I like the opinion. "

"You go for the jugular. "

"Always go for the jugular. "

But he said, "You agonize in it".

I had a couple of sentences of how hard the case was for us.

He said,

"Never agonize in an opinion. "

"Make it sound as though it's just as clear as crystal. "

Well, I thought about that, and then I thought maybe it was pretty good advice, and I removed that material he found offending, and he joined it.

But I violated that in Roe against Wade where I think second and third paragraphs do discuss the difficulty and the emotion of the decision in that particular case.

HAROLD HONGJU KOH: What was your first impression of William O. Douglas?

JUSTICE BLACKMUN: I went down having read about him and read his opinions and some of his antics.

This was a fellow I had to get along with.

That was my number one priority.

And if I may say so myself, I think we got along very well.

Some people would say he was a typical redhead, in the sense that he took a position, adhered to it, and the position of other people didn't amount to anything.

But he was, to use my phrase, he was able and articulate, and I liked him.

I had a little special time with him in the sense that at that time he was being driven to and from the Court.

Something happened where our car was laid up for a couple of weeks.

So I asked if I... I needed a ride to and from the Court... did he mind if I hitched on to the same car that took him, and he said, not at all, so that the driver would pick me up, and we'd go over to Douglas's house and then drive in together.

But it gave me a chance to visit with him on that ride.

I felt I got to know him on those occasions and what he was thinking about.

We got along well.

HAROLD HONGJU KOH: When did you realize you had a common love of the environment?

JUSTICE BLACKMUN: I think right from the beginning.

I'd always had that.

HAROLD HONGJU KOH: Was he from Minnesota?

JUSTICE BLACKMUN: He was born in Minnesota, strangely enough, born up in a county called Otter Tail County.

I well remember the time, I hope I haven't said this before, when the term Minnesota Twins had developed.

I'd warned Chief Justice Burger that this was going to come along.

He wondered what I was talking about because he was not a baseball fan, and I told him.

Sure enough pretty soon the press got on to the Minnesota Twins business, but that lasted about seven or eight months.

But one day, in discussing a case, the chief justice went on at length, and ended up by saying, "I vote to affirm".

And Douglas was next to him down at the end of the table, and said,

"Chief, I vote also to affirm. "

Well, that surprised the chief, and I suppose he showed it.

Douglas said,

"Chief, you and Harry aren't the Minnesota Twins, you and I are the Minnesota Twins. "

went on disclosing the fact that he was born in Minnesota and so forth.

I think it shocked Chief Justice Burger a little bit, but Douglas made the most of it.

HAROLD HONGJU KOH: Douglas had just gone through a series of efforts by then-Congressman Gerald Ford to get him impeached.

Did he show any signs of this?

JUSTICE BLACKMUN: Yes.

He was very sensitive about it, I think.

Congressman Ford was gung-ho down the impeachment line.

I think this bothered Justice Douglas to a degree, as it would bother anyone really.

There was this constant threat of impeachment.

Fortunately, it didn't come about.

HAROLD HONGJU KOH: He was noted for his prickly behavior in his personal life and toward his law clerks.

Did he show this with his colleagues?

JUSTICE BLACKMUN: Yes, I saw it.

One time I think he fired his law clerk three successive days in a row.

The next morning the law clerk would show up and go about his business as usual, and the firing was forgotten about until they got into a wrangle later, and then he was fired again.

He was a little rough on his law clerks, took a lot out of them, and I think it was a sensitive period for them, not easy.

HAROLD HONGJU KOH: Would he be harsh with other justices in conference or argument?

JUSTICE BLACKMUN: No, but he didn't hesitate to show contempt for their theories at times.

But he wasn't harsh with them.

He didn't insult them or anything like that.

HAROLD HONGJU KOH: There's a story told in The Brethren of when you first took the bench that Douglas was throwing things around into the spittoon.

Do you recall this episode?

JUSTICE BLACKMUN: No.

I do not.

HAROLD HONGJU KOH: The story is that when you were first sitting there in your seat on the bench opening up the drawers and looking for the Constitution and other things, Douglas was throwing around cough drop boxes, and writing opinions, and doing other, things.

JUSTICE BLACKMUN: That one incident on the bench... he always wrote opinions on the bench.

Woe to counsel who assumed he was not being listened to, because Douglas could write an opinion on a certain case and listen to the case that was being currently argued.

But he'd be there; and he'd call for books and they'd get piled up so you could hardly see him as he was writing these opinions.

One time I was amused because he was working so hard on an opinion, I sent a note down, I said,

"Bill, what are you doing, writing another opinion? "

And it came back, he said,

"Yes, this lawyer was through twenty minutes ago, but he doesn't know it. "

So he justified himself in that respect.

HAROLD HONGJU KOH: Do you think he was a genius?

JUSTICE BLACKMUN: A genius?

HAROLD HONGJU KOH: That term is sometimes used.

JUSTICE BLACKMUN: He had certain aspects of being a genius, I think, and some that would deny that characteristic.

HAROLD HONGJU KOH: We only have time for me to ask about one other justice at this point, but we'll take up here with the next session.

Tell me about John Marshall Harlan, your first impression of him.

JUSTICE BLACKMUN: Well, I was always impressed by Justice Harlan for a couple of reasons.

He was, of course, a patrician of the first order.

He personified that, I think.

Out of New York, although a graduate of New York Law School.

The other thing that was noticeable about John Harlan was the fact that he was almost entirely blind in the year that I had with him.

He had one of these high intensity lights on the conference table, and as I recall, I think he had one on the bench too, although he was way down the bench from me.

When he asked questions, of course, he did it out of hand.

He didn't have notes that he could read.

I was always impressed with the fact that he was able to carry on these questions with counsel.

I suppose one would say he was conservative in his voting, but he was a person for whom I had the greatest respect always.

He was personable, and yet, as I say, a patrician of the old type.

I guess very different from his grandfather.

HAROLD HONGJU KOH: What was he like?

JUSTICE BLACKMUN: Well, I'm told that he was the last of the tobacco-chewing justices who used the spittoons and hit them with deadly accuracy when they were on the bench and the time came to spit.

But, John Marshall Harlan, as I knew him, the one I knew, was certainly not like that.

He was proud, however, of having his grandfather's chair in his chambers.

As you know, whenever somebody retires the rest of the justices buy his chair from the government and give it to the retiring justice, so that all of us have those chairs.

I don't know what to do with Mine.

My daughters will have to decide what to do with mine sometime.

HAROLD HONGJU KOH: I think that's it for today.

We'll start next time by talking about the rest of the Court and your feeling about your first days as a justice on the Supreme Court.

End of interview