Transcript

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

It's June 6, 1995.

My name is Harold Hongju Koh.

I'm a professor at Yale Law School and a former law clerk to Justice Blackmun.

I'm the interviewer for these sessions.

Justice Blackmun, we are talking about 1973.

We've just finished talking about Roe v. Wade, which came down on January 22, 1973.

Moving now into October term of 1973, what do you remember about some of the background events of that year, leading up to that term?

JUSTICE BLACKMUN: Well, of course, I had to dig into my files somewhat, because this is a long time ago, twenty-two years or so, but I think what we called October Term 1973 was unusual in some respects.

My notes indicated it was a Sixth Circuit year.

We had an unusual number of cert petitions that were grants from the Sixth Circuit, I think some fifteen or seventeen cases, which is unusual from a single circuit.

It was also the year in which two justices died.

Justice Whittaker died November 26, 1973, and then Earl Warren in July 9, 1974, before the 1974 term had begun.

I think also it was the year of Kent State, I believe.

Justice Douglas was always prominent, I think, during the year.

He took the position throughout the term that the conference room was bugged, and I think the Chief Justice, in response to that, one time had it swept, without positive result.

Justice Douglas, also during the year, set a record for time spent as an active justice on the Court.

The record before had been held by Stephen J. Field, but on October 29, 1973, if my notes are correct, Justice Douglas passed the record of 34 years and 196 days, and went on.

Then, of course, it was the year of the Nixon case, which I suppose made October Term 1973 a very unusual one in every respect.

HAROLD HONGJU KOH: Before we turn to the Nixon case, let me just ask you about something that happened in the summer between October Term 1973 and October Term 1974; it involved the Cambodian bombing case, Schlesinger v. Holtzman.

In that case, Congresswoman Elizabeth Holtzman asked the New York federal courts to enjoin the bombing in Cambodia.

The Southern District enjoined the bombing, and then that injunction was stayed by the Second Circuit.

Then there's an attempt to go before Justice Marshall as circuit justice.

He denied the stay, and then they turned to Justice Douglas.

I'm wondering if you can take the story from there.

JUSTICE BLACKMUN: Well, this, of course, involves the basic question of what does counsel do when the Court is in so-called recess.

Does one justice overrule the ruling of another justice?

That's always pretty sticky, but it happened here.

Justice Douglas, in effect, overruled what Justice Marshall had done or had not done, and then took off for Goose Prairie... or did it from Goose Prairie... and in some way it was very difficult to locate him here and there geographically, anyway, which I think Justice Douglas thoroughly enjoyed, being as inaccessible and difficult to locate as he was.

But it came back to Justice Marshall, and he did what I think a justice had to do, and that was to refer the matter to the full Court.

Of course, we were scattered.

I don't remember exactly where everyone was, but in recess months, they can be all over the world, actually.

He, as I recall, is said to have telephoned everybody for a vote, and that in itself raised the ire of Justice Douglas, who felt that was improper, that a conference vote should be taken only when everyone is together and in conference, and not by individual telephone calls.

There's something to be said for that argument, I suppose, but sometimes one operates under the circumstances as they happen to exist and does the best he can.

HAROLD HONGJU KOH: In fact, were there other occasions where decisions were made by a series of telephone calls, as opposed to everybody getting together?

JUSTICE BLACKMUN: Well, it seems to me there had been, yes, not many.

One doesn't do it if he can avoid it.

Of course, when we're in session, we have a session every week, with a few exceptions, so there's no critical point.

But now and then it has to be done by telephone call.

HAROLD HONGJU KOH: How did Justice Douglas respond to the full Court, in effect, overriding his decision?

JUSTICE BLACKMUN: Obviously he didn't like it very well, but he had overruled Justice Marshall initially, and this doesn't very often happen.

I should say, Professor Koh, at this point.

I've never known the status of the relationship between Justice Marshall and Justice Douglas.

It wasn't very evident from our conferences.

They weren't bosom buddies, so to speak, but they weren't arch enemies either, and I think each respected the other.

But I say that only from what I gleaned during conferences and not by individual remarks that either might have made afterwards.

I never heard anything spoken derogatorily by one of the other.

HAROLD HONGJU KOH: Did anybody have anything approaching a close relationship with Justice Douglas?

JUSTICE BLACKMUN: I suppose the answer to that is in the negative.

I thought when I came to the Court, or before I came to the Court, knew I was coming, that there must be a close relationship between Justice Douglas and Justice Brennan, but I wouldn't say that that was the case at all.

There was no antagonism between them, but it wasn't a close social relationship.

I think I mistakenly got the idea because I believe the two families always spent Thanksgiving together, but apart from that, it was not a see-each-other-every-other-week persistent pattern, and that's been true through the entire court itself.

I suppose we see too much of each other during the day to want to see more of each other socially every night.

HAROLD HONGJU KOH: Did the other justices resent Justice Douglas's habit of taking off to Goose Prairie?

JUSTICE BLACKMUN: Well, there was some mild criticism about it.

I don't know whether they resented it, but it did make for an inconvenience factor, of course.

There he was out there, and he didn't have... and I think he purposefully didn't have... a telephone in his cabin out there.

To reach him by phone, one had to go to a phone to which he had to walk a distance, so it wasn't a question of picking the phone up and dialing it and getting Justice Douglas on the other end; it took a couple of hours every time one did that.

This didn't help his departure, his early departures, and, of course, he always chided the rest of us.

He'd say in mid-May,

"My work is done, and the rest of you guys, you're kind of slow. "

"No reason why I should stick around. "

"I'm going out to Goose Prairie where I'm happier than I am here in Washington. "

HAROLD HONGJU KOH: Did you ever see his place in Goose Prairie?

JUSTICE BLACKMUN: I was never there.

I came close to being there one time, but I never did.

I believe Justice Rehnquist visited Goose Prairie, but you'll have to ask him about that.

HAROLD HONGJU KOH: Justice Douglas also did many extra judicial writings.

He wrote a number of books while he was on the Court, Did he ever talk about them or pass them around?

JUSTICE BLACKMUN: No.

He wrote a lot, of course, but he never made a big thing out of it.

He didn't pass it around.

He didn't send complimentary copies to all of us.

I think he went about his own business and felt that was his own business.

He could do it if he wanted to, as long as he wasn't neglecting his Supreme Court duties and holding up the work of the Court, which I must say he never did.

HAROLD HONGJU KOH: This is, I guess, a delicate question.

It was well known that he had a very complicated personal life, with many marriages and tumultuous relationships.

Did that ever enter into your dealings with him or into his dealings with other members of the Court?

JUSTICE BLACKMUN: On the latter, it probably entered into consideration of other members of the Court.

So far as I personally was concerned, because I got to know William O. Douglas rather well, it wasn't a big factor in our professional relationship.

He must have been a person who was not easy to live with, I would think, a person of such strong views.

I was going to say being red-headed; I don't want to insult my red-headed friends.

But he was a person who could flame up in anger at times very easily.

HAROLD HONGJU KOH: Was he a charming man?

What, was his best side?

You hear a lot about his fits of anger and pique, but nobody talks very much about his good humor.

JUSTICE BLACKMUN: He had a lot of good humor, and, of course, all one had to do to make him feel good was to speak of Outer Mongolia, where he had traveled and visited and liked to be.

There was a period... I don't want to repeat myself.

I hope I haven't said this in these conversations you and I have had... there was a period when I rode with Justice Douglas to the Court every morning.

This was at the time When the Court had one automobile, and the routine was that if one wanted to use it, he made a reservation for it.

Justice Douglas reserved it every morning at eight o'clock for ten weeks, and this irritated Hugo Black, because when he wanted a car at that time, Justice Douglas always had it.

But anyway, there was a period when my automobile was broken down or I was between automobiles or something, and I called Bill Douglas and asked if he minded if I hitched a ride with him in the mornings, and for maybe three weeks I did ride with him.

The driver would pick me up and then we'd go and get Justice Douglas.

I've always felt that was a big plus in my relationships with him, because I did get to know him.

We talked about a lot of things.

As I say, if the conversation got a little stiff, all I had to mention was Outer Mongolia, and we were off.

He was a complicated person that would be difficult for a lot of people to understand and then to deal with, but he was always kind to me, and I think basically we were friends.

HAROLD HONGJU KOH: Did you talk about cases in these rides or was it always about non-court business?

JUSTICE BLACKMUN: We didn't talk about cases that were under consideration at all.

We talked about legal philosophy, mainly, and his experience as a teacher and the like.

HAROLD HONGJU KOH: Let me ask you about his feelings about various personalities.

What did he think of Richard Nixon?

JUSTICE BLACKMUN: Well, he didn't think very much of Richard Nixon, and one could tell that as he walked into the Douglas chambers at that time.

There were certain things on the wall that were derogatory of Mr. Nixon.

HAROLD HONGJU KOH: Cartoons?

JUSTICE BLACKMUN: Yes, and other things.

HAROLD HONGJU KOH: What about Gerald Ford?

Gerald Ford had had a longstanding campaign to impeach Douglas.

Did Douglas ever talk about that?

JUSTICE BLACKMUN: No, not specifically.

Of course, for a while Gerald Ford was really carrying the torch to "get him", to use that phrase.

I have always felt that this was a good reason why Douglas did not inherit the job of writing Roe against Wade, because I think it would have exacerbated the antagonism toward him that was felt in certain quarters of the public, and it probably would have given Ford some additional ammunition at that time.

But it all worked out.

HAROLD HONGJU KOH: How did Justice Douglas get along with Chief Justice Burger?

JUSTICE BLACKMUN: Oh, I think they got along.

They certainly were not close friends.

They were ideologically very different, of course.

Their temperaments, I suppose their abilities, their backgrounds were certainly very different.

But Chief Justice Burger, largely as chief justice, I think, felt that he had to keep the Court compatible, so far as the various members were concerned, and I think he went out of his way to accommodate Justice Douglas whenever he could.

But so far as legal issues were concerned, there was antagonism, of course.

Again I hope I'm not repeating, but I well remember one case where we were discussing it in conference, and the chief justice, following the routine, stated the facts of the case and carried on at great length about the issues involved, and then finally said,

"For these reasons, my vote is to affirm. "

"Bill, what do you think about it? "

--Bill Douglas being the senior sat at the other end of the table.

Douglas's response was only this:

"Chief Justice, for the reasons you have spelled out at such great length, my vote is the opposite; I vote to reverse. "

Period.

That was his contribution.

Well, one sensed, of course, a little antagonism between the two at that time.

HAROLD HONGJU KOH: The Cambodia bombing case that I just mentioned was just one of the many ways in which the Vietnam War was becoming a part of the public consciousness.

Another event which that triggered, of course, was the burglary at the Watergate, which then gave rise to the Nixon tapes case, Just to give the chronology of events, this started back in June of 1972 when five men were arrested at the Watergate, burglarizing the Democratic National Committee headquarters.

In September of 1972, the grand jury indicted these five men plus Gordon Liddy and Howard Hunt.

By February of 1973, which was only a few weeks after Roe v. Wade came down, the Senate committee was formed to investigate the break-in.

Then by May of 1973, Archibald Cox had been appointed as special prosecutor by Elliot Richardson.

Do you have a memory of this period?

When did, you start to take all this seriously?

It was dismissed initially by Nixon as a third-rate burglary, but the matter persisted and, over time, people started to realize that this was a very serious event.

JUSTICE BLACKMUN: I'm not sure I know exactly how to answer that question, and what I'm about to say applies only to me personally.

I do not speak for any other member of the Court as to his reaction.

But it seemed to me that all through those events that you mention, together with Roe against Wade, a lot of things were happening, the full significance of which we were not aware of at the time.

They were happening, but there's always something happening at the Court.

I know all of a sudden, the significance of the incidents put together became much more apparent than was the case as they happened day by day.

I guess maybe I was slow at the time, but I hadn't realized what was unfolding before us.

HAROLD HONGJU KOH: Do you remember watching the Senate testimony of John Dean or the testimony where Alexander Butterfield revealed that taping of the Oval Office had gone on?

JUSTICE BLACKMUN: Yes, I do specifically remember the John Dean testimony, and watching it with those in the background, whom I shall not name, but who came to the fore later.

Yes.

HAROLD HONGJU KOH: Did you have any prior contact with Elliot Richardson, who was attorney general at that period?

JUSTICE BLACKMUN: No, not really.

I may well have met him up at some doings in the First Circuit or something of that kind, but no.

HAROLD HONGJU KOH: How about Archibald Cox, whom he appointed as special prosecutor?

JUSTICE BLACKMUN: Well, Archie Cox, of course, was a well-known figure, particularly well known at Harvard Law School, and well known for his inevitable bow tie and the like, and for his basic ability and talent.

So in that sense, I had a touch of Archibald Cox and knew who he was and how he operated, and the importance of his assignment.

HAROLD HONGJU KOH: Did you have a high regard for him?

JUSTICE BLACKMUN: Yes, indeed, I did.

HAROLD HONGJU KOH: Another player in the drama was, Judge John Sirica of the US District Court for the District of Columbia.

Did you have any particular experience with him?

JUSTICE BLACKMUN: Well, I didn't know judge Sirica except as one of many judges in the District of Columbia and as one who was caught in this very difficult situation.

I don't recall that the Court ever was particularly critical of the judge, and I know I was sympathetic for anyone who was caught trying to make rulings under this pressure and with the significance of the cases.

I don't remember the Court's being critical of him as such, that he should have done other than what he did.

Just took it and the appeals were there, and we went on.

HAROLD HONGJU KOH: , Cox was the very first special prosecutor.

Over time, Congress passed a statute creating independent counsels, and then the constitutionality of that statute was challenged.

Ultimately in a case called Morrison v. Olson, you voted to uphold the constitutionality of the Independent Counsel Act.

What is your feeling about independent counsels and whether they're a useful function in our system of government?

JUSTICE BLACKMUN: You're not asking whether I think my vote in that case was correct.

Obviously I must say that I think it was correct.

But I think it's one of those situations where an independent counsel is a very handy thing to have around or to have available at times.

The danger, of course, is that one tends maybe to overuse it, but I wouldn't want to do away with it as a tool of judicial accomplishment.

HAROLD HONGJU KOH: In the fall of 1973, shortly after the first Monday in October, Vice President Agnew resigned.

This is recorded as having occurred during the baseball World Series between the Mets and the Reds.

According to The Brethren, Justice Stewart was given a note by his clerk which said,

"Agnew resigns. "

"Kranepool flies out. "

or something of this nature.

Did you have any exposure to Agnew or any view about him?

JUSTICE BLACKMUN: I didn't have any particular feel about him.

I'm sure I met him at some of these state functions and this kind of thing, but that in itself is a chapter, I suppose.

You mention the notes.

Potter Stewart, of course, as I was, was a baseball fan and a very live one if the Cincinnati Reds were involved.

During the times when they were in the World Series, which was in October... and it always seemed to coincide with our sitting he insisted that his clerk send the score by half inning in to him.

Well, they brought it to whomever was sitting at the end of the bench, and it went down from justice to justice.

I think this irritated Chief Justice Burger a little bit, because he received it from the justice on his right, looked and saw what it was, and banged it down on the left.

But one had, to keep up with the important events of the day, such as Sr., used to call it, the World Serious, which I thought was a pretty good appellation.

Mr. Justice, let me take you through the day-to-day events of the Nixon tapes case, and maybe you could give me some sense of how you were feeling at these various periods.

In late summer of 1973, Judge Sirica ordered President Nixon to turn over some taped conversations for him to review in camera, and President Nixon refused.

This went to the D.C. Circuit, which affirmed Judge Sirica by a vote of five to two.

This was in October of 1973.

Many people expected that the case would then come to your Court.

Instead, President Nixon compromised and offered summaries of the tapes, with the accuracy to be determined by former Senator John Stennis.

Then Nixon ordered Archibald Cox not to demand any more tapes.

Do you remember at this point having any feeling about whether the case would come before the court?

There was a close call there.

I think it was a close call.

I personally thought it would come before the Court.

I didn't attempt to find out the feeling of other justices at all, but it seemed to me it was ready-made for the Court, and the average case like it would certainly come.

Of course, one thing that I think people sometimes forget is the term that you used, in camera, which meant confined to the judge and not made public.

Exciting days, in retrospect, anyway.

HAROLD HONGJU KOH: The next event, October 20, 1973, is the so-called Saturday Night Massacre.

On that day, President Nixon instructed his senior White House advisors to order that Cox be fired.

First Richardson refused and resigned, and then his deputy, Bill Ruckelhaus, refused and resigned, and the number-three person at the Justice Department, then-Solicitor General Robert Bork, agreed, and Cox was fired.

Do you remember that event and your reaction to it?

JUSTICE BLACKMUN: I certainly remember the event and remember watching it on television at the time.

HAROLD HONGJU KOH: What was your feeling about Bork, who had been solicitor general for Nixon?

JUSTICE BLACKMUN: First of all, I was surprised to learn the exact order of seniority.

Of course, solicitor general is number three, actually.

I was a little surprised that he didn't go the way of the two predecessors, and I was a little surprised that he stuck to it and fired him, obeyed the orders and fired the others.

But I didn't know General Bork well, and I'm not being critical of him.

I just thought it would go the other way.

HAROLD HONGJU KOH: What kind of solicitor general was Bork?

JUSTICE BLACKMUN: I think he was a very presentable solicitor general.

He was distinctly different from Dean Griswold and from Archie Cox.

He was Robert Bork, and his manner of presenting a case was different.

I personally liked the other methods rather than his, but that was just my personal point of view.

He always presented his cases adequately, with articulation, with ability, and Was a good lawyer, no question about this.

HAROLD HONGJU KOH: Subsequently he was appointed to the D.C. Circuit and then nominated to the Supreme Court.

He went through that tumultuous confirmation hearing, and then was denied confirmation.

What were your feelings about him during that period?

JUSTICE BLACKMUN: It must have been a very difficult time for him.

I suppose he remained a bitter person after that, as anyone else would be inclined to do, I suppose.

And yet in my own case, I look at Clement Haynsworth, who, when he was rejected by the Senate, went back, continuing his work as a federal appellate judge, and I think grew in the job and conducted himself splendidly.

I always admired Judge Haynsworth for that.

HAROLD HONGJU KOH: Did you ever have much of a one-on-one dealing with Robert Bork?

JUSTICE BLACKMUN: No, I would say not.

I'll leave it at that.

HAROLD HONGJU KOH: After be was not confirmed, he argued a number of cases at the Court.

Do you remember any of those arguments or any general reaction to his performance?

JUSTICE BLACKMUN: They were well performed, they were well argued, and I always felt, without being sure of my feeling, that underneath them all there was a feeling of bitterness, but he came up and argued them and carried on, did his job well.

Tough, tough to go through an experience of that kind.

HAROLD HONGJU KOH: When you saw the confirmation troubles that he had, did it seem to you that you had gotten off lightly, or did you think that in some way each person had their own confirmation experience and essentially deserves what they get?

JUSTICE BLACKMUN: Oh, I was in no position to judge that.

I would lean toward the sympathetic side, I suppose, having gone through a couple of confirmations myself.

HAROLD HONGJU KOH: The replacement to Archibald Cox was Leon Jaworski of the firm of Fulbright & Jaworski, a former president of the American Bar Association.

Did you know him at all, or did you have any contact with him?

JUSTICE BLACKMUN: Not any close contact.

I knew him and had met him as president of the American Bar, knew he was a person of influence and a person, putting it another way, with some clout in certain quarters of legal profession.

He was an able person.

HAROLD HONGJU KOH: At this point, in October of 1973, the Senate committee, the House committee, and the special prosecutor all requested the tapes, or sought to subpoena the Nixon tapes.

The White House said that some of them didn't exist and also said that there was an eighteen-minute gap on one of the tapes.

Do you have any view as to where that gap might have come from?

JUSTICE BLACKMUN: No.

If I did, it would be pure speculation, just as it is with everybody else, theoretical explanations of it.

Who believes what?

I do not know.

HAROLD HONGJU KOH: By March of 1974, Jaworski had sought some new indictments against H.R. Haldeman, Nixon's chief of staff, John Ehrlichman, his chief of domestic affairs, and the attorney general, John Mitchell, whom you had met when you were first appointed.

Jaworski subpoenaed sixty-four more tapes.

What later came to light was that in that indictment, Richard Nixon was named as an unindicted co-conspirator.

Once again, Jaworski requested the transcripts, this time with a subpoena under Federal Rule of Criminal Procedure 17, and Judge Sirica ordered that he comply.

At this point, the special prosecutor, Mr. Jaworski, came to the Court with a request for cert before judgment; in other words, that the Court grant cert before it goes to the D.C. Circuit for review.

You were one of the justices who voted against cert before judgment.

Do you remember what your reasoning was in doing this?

JUSTICE BLACKMUN: I don't remember specifically what my reasoning was.

As I recall, cert was granted, and cert before judgment is most unusual: I think in my twenty-four years there, there couldn't have been more than two instances, if two.

HAROLD HONGJU KOH: There are two: this and the Iranian hostage case was the other case.

JUSTICE BLACKMUN: I suppose my leaning as a former appellate court judge was to let matters take their regular routine, and that the Supreme Court itself would be better off having the case go up through a court of appeals.

But I didn't feel too strongly about it, even though 1 voted the way I did.

It takes a real case to get cert before judgment, but this was that kind of case.

HAROLD HONGJU KOH: I should mention that a number of commentators who later agreed with the Court's opinion on the merits, including Gerald Gunther, were also opposed to cert before judgment at the time, so you weren't alone.

At this point, the question arose of whether Justice Rehnquist should be involved with the case.

Do you remember any of the discussions about that?

JUSTICE BLACKMUN: Yes.

There weren't too many discussions.

Certainly the Court wasn't passing in judgment on Justice Rehnquist at all.

The routine at the Court is that a recusal is a matter of personal choice for the individual concerned.

I think he was uncomfortable through this period and eventually did recuse himself because of his having had a fairly close relationship with Attorney General Mitchell, as I remember his statement.

HAROLD HONGJU KOH: Do you think he and Mitchell were close friends?

JUSTICE BLACKMUN: Well, I think there was a period probably when they were certainly close professionally, and maybe close friends.

HAROLD HONGJU KOH: So thereafter, Justice Rehnquist didn't participate at all in the case?

JUSTICE BLACKMUN: That's correct.

HAROLD HONGJU KOH: Did Justice Rehnquist have a relationship with Kleindienst, the deputy, who later then replaced Mitchell as attorney general for a brief period?

JUSTICE BLACKMUN: I can't answer that question; I don't know of any such.

HAROLD HONGJU KOH: Was it possible that Rehnquist could have been subpoenaed during this period?

JUSTICE BLACKMUN: , Oh, anything's possible by way of subpoena, sure, of course.

HAROLD HONGJU KOH: At this point we're now in May of 1974, with the Court having agreed to hear the case.

This is long after oral arguments are usually granted, and that argument was then set for later on in the summer.

Do you remember your feeling about the rest of the term's Work and how this was affecting the other work you had to do?

JUSTICE BLACKMUN: Well, we were all rather disturbed about it, because usually the oral arguments are over at the end of April, and May and June are devoted entirely to getting opinions out on argued cases.

So that each of us had his share of backlog opinions that were not yet out, and this thing came along on top of it all.

I think, by and large, we devoted our initial efforts, I think, to getting those argued cases out of the way.

HAROLD HONGJU KOH: During this period, the Court got an unusual letter from the then majority leader, Mike Mansfield of Montana.

Do you remember the letter and what it was all about?

JUSTICE BLACKMUN: In general terms.

I remember the majority leader's seeming antagonism toward the Court, yes.

I don't know the basis of it, because it goes back, really, before my time, but there were comments around the table that Senator Mansfield didn't have much use for the Supreme Court.

I think he thought it was a nuisance and got in the way and was upsetting some good legislation and the like.

HAROLD HONGJU KOH: The letter basically asks you to give up your vacation to hear the Nixon case.

I guess the justices didn't take too kindly to this.

JUSTICE BLACKMUN: No.

They didn't like to have it called "vacation", I suppose, because all of us were busy during the summer, each in his own way.

HAROLD HONGJU KOH: Oral argument was then set for July 8th, after the Fourth of July.

According to various accounts of the case, a number of the justices prepared pre-argument opinions.

Was this an unusual step?

JUSTICE BLACKMUN: I would say it was a little unusual.

I well remember the setting.

The eighth day of July happens to be the birthday of our oldest daughter, and usually by the eighth day of July we have adjourned for the term or taken a recess, and here we were just getting started on this case.

But I don't particularly remember those pre-argument memos, although there were cases in which that type of thing was indulged in at that time.

We don't do it much anymore.

HAROLD HONGJU KOH: Do you think various justices were angling to be assigned the opinion?

JUSTICE BLACKMUN: Oh, I would have to say no to that, I think.

It wouldn't be a very enviable assignment, because whoever caught it would have other justices sitting around waiting for him to get his material out, and the tendency would be critical of whatever came out.

HAROLD HONGJU KOH: In the files in the case, it shows that in late June, the Court received a letter asking that the oral argument be videotaped, which was denied one day later.

At this time, do you think there was any serious thought about granting this request?

JUSTICE BLACKMUN: Well, the chief justice was very much opposed to any cameras in the Courtroom, and the Court consistently went along with his feeling, so I think the denial of that request was almost automatic.

HAROLD HONGJU KOH: Knowing the chief as you did, do you think he was in an awkward position?

Among the justices, was he the one who was closest with the White House and the Justice Department?

JUSTICE BLACKMUN: Who?

HAROLD HONGJU KOH: Chief Justice Burger.

JUSTICE BLACKMUN: I think probably what you've just said is true, that among the justices he was the closest.

HAROLD HONGJU KOH: There's been some suggestion in at least two historical accounts that the chief justice would have telephone conversations with Attorney General Mitchell about judges and other kinds of appointments and maybe even communicated with him about who the special prosecutor ought to be.

Does that ring true to you?

JUSTICE BLACKMUN: I know nothing about that, really, and I don't want to say that there were such calls or that there were not such calls.

I just don't know.

HAROLD HONGJU KOH: Starting on July 8th, oral argument was held for three hours.

Leon Jaworski appeared for the special prosecutor and also Phil Lacovara, and Jim St. Clair appeared for the president.

What are your memories of that oral argument?

JUSTICE BLACKMUN: Well, it's rather dim in my memory, but I certainly was not critical of the technical ability of the advocates, which means, I think in my memory, that it was a presentable oral argument and certainly all of the names you have mentioned, Lacovara and Jaworski and the like, were able lawyers and did a job.

I think the Court was annoyed that it had to sit for three hours on the eighth day of July in the middle of the summer.

But the work was there, and it had to be done.

We went at it.

HAROLD HONGJU KOH: Did you have any feeling about Jim St. Clair, the president's lawyer?

JUSTICE BLACKMUN: Well, it was the first time I had seen him in action, and as far as I know, I don't believe he's been in the Court since then.

He's admitted to the bar and is, I take it, an active lawyer in the Boston area.

I had not known him.

These are sensational, sensitive cases that make it difficult for any lawyer, and I. think he must have felt that the focus was on him and that most of the public was on the other side, as far as sympathy was concerned.

HAROLD HONGJU KOH: Did you have doubts as to whether the president would comply if the Court were to order him to turn over the tape?

JUSTICE BLACKMUN: I just assumed that he would comply, I think.

So I guess the answer to that is, no, I did not have any doubts.

But one never knows.

HAROLD HONGJU KOH: The chronology of the evolution of the opinion is recounted in great detail in the book The Brethren by Woodward and Armstrong.

My comparison of the files with The Brethren report suggests that this is a surprisingly accurate account.

At least one commentator, or probably two commentators, John Jeffries, in his biography of Powell, and David Garrow, suggest that the account in The Brethren was provided by some combination of Justice Stewart's talking to Woodward and Justice Brennan's accounts of the case being shown to Woodward.

Do you have any feeling about how this information about the case was reported?

JUSTICE BLACKMUN: Well, I know I was surprised at the detail set forth in the book, The Brethren.

I personally don't think it's a very good book, but it's an interesting book.

It has a lot of detail, it has a lot of misstatements of fact... unintentional, I'm sure... and there's a good bit of speculation in the book.

I remember our youngest daughter, who was then abroad, corning home for a visit one summer.

The book was on our coffee table, and she picked it up and took it with her when she went away for about a week, and brought it back, and she said,

"Daddy, I've read this with interest. "

"For the first time in my life, by reading it, I'm beginning to understand the nature of your job and what you're trying to do. "

And I think if that book did that for her, it would do it for other members of the public, and therefore was worthwhile.

But maybe there should have been another book written by somebody else with a little different tack to it.

But there it is, and there's a lot of stuff in it, some of which is not accurate, according to my recollection, anyway.

HAROLD HONGJU KOH: , Why do you think Justice Stewart would talk to the press?

JUSTICE BLACKMUN: I suppose one would have had to ask Justice Stewart.

I think the so-called leaks, such as they were, I always felt were attributable to that chamber.

But Potter was always friendly with the press, he liked the press, they liked him, he was a good subject.

It was a matter, I think, of great concern to Chief Justice Burger, who wanted everything absolutely tight and secure as far as the Court was concerned, and here it was almost an open faucet of information going out somewhere.

HAROLD HONGJU KOH: One of the themes of The Brethren is the rivalry between Justice Stewart and Chief Justice Burger, perhaps stemming from Chief Justice Burger being selected as chief, rather than Justice Stewart.

Was that real or is that something that was just manufactured for the book?

JUSTICE BLACKMUN: Was the feeling between the two of them real?

Well, I don't know how to answer that question, Professor Koh, really, because what I would say would be largely speculation, but the chief was always offended if there were leaks.

He knew there were leaks, he knew there were substantial leaks, and I suppose their regard for each other was not of the highest caliber.

HAROLD HONGJU KOH: At the first conference following the argument in the Nixon tapes case, was there a substantial unanimity about what should happen?

JUSTICE BLACKMUN: I think there was a feeling of unanimity in that whatever was done would best be done unanimously, if it were possible to do it, and no one knew at the time whether it would be possible to do it, but I think the sensitivity of the case had impressed itself upon all of us, and the desire was to get at it, get at it with integrity and get at it quickly and get it out of the way and move along, and that the country deserved the disposition of those issues in a proper way.

HAROLD HONGJU KOH: Were people conscious of the looming impeachment proceedings in the House?

JUSTICE BLACKMUN: I would give you an affirmative answer on that, yes.

HAROLD HONGJU KOH: And did it come as a surprise to you that the chief justice decided to take the case for himself?

JUSTICE BLACKMUN: No, not really.

I think almost any chief justice would have given it to himself.

After all, the chief supposedly is first among equals, and it was bound to be a "big case"... I put that in quotation marks... and I certainly knew I wouldn't catch it as a distinct junior.

I think there were one or two others who would like to have had it.

I think Potter Stewart would like to have had it.

Douglas, I don't know, maybe so.

But it didn't surprise me at all that it went to the chief.

HAROLD HONGJU KOH: At this point, ironically, Chief Justice Warren passed away.

JUSTICE BLACKMUN: Yes.

HAROLD HONGJU KOH: Do you remember that event and how it interacted with the tapes case?

JUSTICE BLACKMUN: Well, it certainly interacted with it.

I remember Chief Justice Burger telephoning me, and I must assume he telephoned each one of us, and his opening words were, "Well, he's gone".

And I said, "Who's gone"?

And then he, of course, said it was Earl Warren.

I think the passing of Chief Justice Warren made a great impression on Chief Justice Burger, and there it was.

This happened right in the midst of all this other thing, and it made for a very hectic time.

HAROLD HONGJU KOH: Do you think that the Court was inspired by the example of Chief Justice Warren's unanimous opinion in Brown v. the Board?

JUSTICE BLACKMUN: It might have been.

I don't want to say it was or was not, but it certainly might have been, because I think this case, as Brown, was a case where unanimity was desirable if it could be achieved.

HAROLD HONGJU KOH: What kind of relationship did you have with Chief Justice Warren?

Did you have any dealings with him?

JUSTICE BLACKMUN: Well, nothing very close, but he was always nice to me, and I think we got along well.

I certainly respected him and I hoped that in passage of time, he would come to respect me, although he probably wondered what kind a person I was.

HAROLD HONGJU KOH: Did he have a special closeness with any of the other justices?

JUSTICE BLACKMUN: Did I have a special what?

HAROLD HONGJU KOH: Did Earl Warren... was he especially close to any of the other justices you were sitting with?

JUSTICE BLACKMUN: I wouldn't want to say that he was, because I don't believe there's a special closeness among any of us, really, other than the one I may have Mentioned before.

I thought there was an element of special closeness between Justice Stewart and Justice Powell for a while, for various reasons.

HAROLD HONGJU KOH: What kind of relationship did Chief Justice Burger have with Chief Justice Warren?

Did they have any kind of relationship?

JUSTICE BLACKMUN: I think they were friendly, and I'm sure that Chief Justice Burger must have looked upon events of the past and action that Chief Justice Warren had taken as examples, although in my day, when I arrived, Chief Justice Burger, it seemed to me, relied much more on Hugo Black than he did on Earl Warren at that time, for various things.

HAROLD HONGJU KOH: The last question before we change the tape.

At Chief Justice Warren's funeral, President Nixon, who was the subject of this controversy, was in attendance.

Do you remember anything about that?

Was there an awkward social moment where the justices of the Court were together with a person who was in the dock?

JUSTICE BLACKMUN: Oh, I wouldn't say so, that it was an awkward social moment.

It was Earl Warren's funeral, and I think that fact dominated the situation, and rightly so.

HAROLD HONGJU KOH: We'll change tapes now, but when we come back, I want to talk a little bit more about the crafting of the opinion in U.S. v. Nixon.

Break