Blackmun's last laugh - the welcome retirement of the United States Supreme Court Justice Harry Blackmun - Editorial

National Review, May 2, 1994

AT THE press conference at which he announced his retirement, Justice Harry Blackmun observed how he and Justice John Paul Stevens shared a belly laugh "in a coffee break somewhere" about how the two, appointed by Republican Presidents, are now considered the Court's liberals. While the Justices are entitled to a moment of mirth over this development, the joke has been at the expense of the American people.

The media may applaud Justice Blackmun's odyssey from "conservative nonentity to liberal champion." But the American majorities that elected Republican Presidents to office, with certain expectations about the course of government, have cause to rue his self-realization.

To be sure, no President can anticipate the controversies that will confront his judicial appointees in years ahead, and much has been made of the "disappointed President" phenomenon. Accountable government, however, requires some sense that those elected and appointed to high public positions will bring certain broad philosophical premises to their tasks. When this sense is violated, "we the people" normally can redress matters through the mechanisms of democratic government. In the case of Supreme Court Justices, this is not so.

Harry Blackmun may well have been a "humble" man in his personal life, as we are told by the gaggle of former law clerks now being quoted by all the best journals. In his public life, however, he was arrogant and disrespectful of the Constitution. Not only in the area of abortion--where he concocted the "right of privacy" out of whole cloth in an opinion that reads like a caricature of judicial activism--but less famously in the areas of gay rights, racial quotas, church-state relations, federalism, and criminal justice, he treated his own private moral convictions as the law of the land. Well before the end, Harry Blackmun had become a traditional liberal, distinguishable from William Brennan (with whom he could also have had a few laughs) only by his mediocrity and lack of legal distinction.

Just as Democratic mud-throwing in the Senate denied the country Robert Bork, the country had been bequeathed Harry Blackmun twenty years earlier by libels directed against the far more worthy Clement Haynsworth. It is fitting that Justice Blackmun should pay the Republican Party back for not choosing him first by straining to delay his departure until someone like Bill Clinton could take office. We are confident that this President will choose a worthy successor.