Blackmun to leave high court

April 06, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court Justice Harry A. Blackmun, 85, plans to disclose later today that he will retire at the end of the court's current term in June -- 21 years after making his place in history by writing Roe vs. Wade, the historic abortion decision.

Justice Blackmun will issue a statement this morning, a source ++ close to the jurist said last night.

President Clinton indicated to reporters last night that he knew of the plan and intended to wait for Justice Blackmun's announcement before making further comment.

Justice Blackmun's retirement is expected to lead to a prompt announcement of Mr. Clinton's choice for a replacement.

Speculation last night centered on the Senate's majority leader, George J. Mitchell of Maine. Early last month, Mr. Mitchell said that he would not seek re-election after his term expires this year because he wants to "consider other challenges."

Justice Blackmun, known as a moderate when he was appointed to the court by President Richard M. Nixon in April 1970, has become the court's most liberal member. His philosophy has moved slowly from center to left, and he remains -- with Justice John Paul Stevens -- the last of the liberal bloc that once dominated the court.

Justice Blackmun has become the only member of the court who is a determined foe of the death sentence -- a position he adopted just weeks ago after concluding that the scheme of capital punishment in use in America could no longer satisfy the Constitution.

It is a position close to that held by the court's most liberal modern justices, to whom Justice Blackmun had grown close personally and ideologically: retired Justice William J. Brennan Jr. and the late Justice Thurgood Marshall.

Justice Blackmun often has referred to himself as "old No. 3," because he was Mr. Nixon's third choice after two earlier nominees failed to gain Senate confirmation in 1969 and 1970.

In his early years on the bench, Justice Blackmun and Chief Justice Warren E. Burger, a conservative, voted together so often that they were called "the Minnesota twins." Both are natives of that state, and were long-time friends -- a friendship that later waned as they grew apart in judicial philosophy.

Justice Blackmun surprised most court observers when, in his third term on the court, he emerged as the author of one of the most sweeping constitutional declarations in the nation's history: the abortion decision in January 1973.

He has received tens of thousands of bitterly critical letters and has been considered an evil judge by anti-abortion forces, who have wished for his retirement for years. He has said, ruefully, that he will be forever identified with the Roe decision -- an identification that "I'll carry to my grave."

Years ago, Justice Blackmun pondered retiring when he reached age 75. But he passed that milestone 10 years ago last November and has continued to serve -- acting often as a kind of moral conscience of the court.

Before Mr. Clinton took office in January 1993, Justice Blackmun reportedly told him in a private conversation that he would not serve beyond the current term of the court.

He became the court's longest-serving justice last year, when Justice Byron R. White retired. That gave Justice Blackmun a special power, picking the author to write decisions when he was in the majority and Chief Justice William H. Rehnquist was not.

A quiet, seemingly withdrawn man, Justice Blackmun for years has left the task of social conversation to his wife, Dotty, who often has regaled listeners with tales out of school about feuds among the justices.

For years, Justice Blackmun has taught a course on issues of justice at the Aspen Institute in Colorado -- an assignment that allowed him to be close to the Aspen Music Festival. He has turned his love for music into something of a tradition at the court, with afternoon concerts about once a year.

In replacing Justice Blackmun, the president will have his second opportunity to name a member to the bench.

Last June, he selected Justice Ruth Bader Ginsburg -- the second woman to serve on the court. She is turning out to be the moderate centrist that Mr. Clinton said he wanted on the court.

If Mr. Mitchell is the president's choice to fill the open seat, he is likely to be somewhat more liberal than Justice Ginsburg, but perhaps less so than Justice Blackmun.

Sources familiar with White House views on likely appointments to the court have said that Mr. Clinton is keen on Mr. Mitchell not only because of the stature he has attained, but also because his nomination almost certainly would move through the Senate swiftly.

The president is said to be concerned that, with the full legislative agenda he has pending in Congress, he does not wish to stir up trouble over a Supreme Court nomination.

The president previously considered Mr. Mitchell, a former federal judge, for an appointment to the court, but passed up that chance in choosing Justice Ginsburg after a prolonged search.

Another name likely to be on any short list is that of Solicitor General Drew S. Days III, a former Yale law professor and former civil rights official in the Carter administration.

There also has been speculation that the president might consider Attorney General Janet Reno for the post.

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