The Lichfield Group

This article appeared in the April 26, 2005 issue of the Washington Times.

Senate Democrats would eagerly vote to confirm a second edition of Supreme Court Justice Harry A. Blackmun. The opportunity may arise if Senate Republicans shy from ending Democrat filibusters of judicial nominees. By requiring 60 votes for confirmation, a filibuster would force President George W. Bush to compromise his pledge to appoint Justices in the image of Antonin Scalia and Clarence Thomas. (Judicial filibusters also contradict the understanding of Article II, section 2 of the Constitution, which enshrines a simple majority yardstick for judicial confirmations; the practice rests on the alarming principle that the Senate may destroy the judicial branch by refusing to vote on any nominee).

Justice Blackmun epitomized what Democrats halo as a “mainstream” jurist. He was nominated by President Richard M. Nixon in 1970. A Democrat controlled Senate quickly confirmed Blackmun by a unanimous 94-0 vote. The “consensus” Justice served 24 years on the High Court as a reliable ally of liberal icons William Brennan and Thurgood Marshall.
He was endowed with flabby cerebral faculties. His opinions were more visceral than reasoned. He conceived his vocation as priesthood for proselytizing personal moral epiphanies. And he permitted partisan politics to influence his judicial actions.
Justice Blackmun’s defining moment was his authorships of Roe v. Wade (1973) and Doe v. Bolton (1973). The twin decisions announced a constitutional right to an abortion, although the Constitution made only a cameo appearance. The Roe decree beautifully captures what Senate Democrats insist is brilliant “mainstream” judging.
After initial argument (the case was later reargued), Justice Blackmun deputed his law clerks to draft an opinion while he traipsed off to the Mayo Clinic library in Rochester, Minnesota. The reading rooms predictably lacked volumes on constitutional history, separation of powers, the Bill of Rights, or the intent of the Founding Fathers. But that was untroubling to Blackmun. He his pilgrimage was to master the medical aspects of abortion, not what the Constitution has to say about the matter. Accordingly, Justice Blackmun discovered a long dormant right to an abortion in Roe primarily by reliance on extra-constitutional considerations: ancient attitudes; the Hippocratic Oath; the common law; English statutory law; the American law; the position of the American Medical Association; and, the views of the American Public Health Association. In contrast, the Justice’s constitutional analysis was confined to one succinct paragraph. It robotically endorsed privacy precedents extracted from “penumbras and emanations” of the Bill of Rights. Blackmun declined to explore the soundness of these dubious rulings. He simply pontificated in the manner of a papal encyclical: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Blackmun’s constitutional frolic in Roe, which Democrat liberals acclaimed, began to falter by dint of serious intellectual scrutiny. That erosion dismayed the evangelizing Justice. He perceived the battle over the precedent (as a matter of constitutional mandate, not wise legislative policy) as a choice light and darkness that justified lobbying the United States Senate from the bench. Thus, in Planned Parenthood v. Casey (1992), where the majority retained the core holding of Roe by a one-vote margin, the Justice worried: “But now, just when so many expected the darkness to fall, the flame [of abortion rights] has grown bright…I fear [however] for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.” Accordingly, Blackumn urged the United States Senate to vet his replacement for adherence to Roe, an outlandish abuse of his judicial office: “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on [Roe].” The confirmation process, the Justice added, may be where the choice between his world of lightness and his detractors’ world of darkness is made. Senate Democrats did not scold Blackumn. They followed his exhortation by making support for Roe a litmus test for Supreme Court nominees.
Roe was vintage Blackmun, not an aberration. Regarding the death penalty, for example, he somersaulted from a reluctant defender in Furman v. Georgia (1972) to a John Knox-like critic in Callins v. Collins (1994). In the former, Blackmun confessed his strong inclination to smuggle personal moral precepts into constitutional interpretation: “[Death penalty] cases provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgments exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life experiences, and is not compatible with the philosophical convictions I have been able to develop.” In Callins, Blackmun succumbed to the temptation to subordinate the Constitution to his moral weathervane. In the manner of a confessional, he avowed: “From this day forward, I no longer shall tinker with the machinery of death.”
In language and thinking reminiscent of Animal Farm, Justice Blackmun, in Regents University of California v. Bakke (1978), celebrated racial quotas in obtusely maintaining that racism must be practiced to defeat it; and, that racial equality requires racial discrimination: “In order to get beyond racism, we must first take account of race…And in order to treat some persons equally, we must treat them differently.”
Justice Blackmun’s lawless visceral interpretations of the Constitution will gain strength in the Supreme Court if the Senate retains the judicial filibuster. Shouldn’t that chilling prospect steel the will of Senate Republicans?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.