Justice served

April 11, 1994|By Harold Hongju Koh

WHEN Harry Blackmun joined the Supreme Court in 1970, he was dismissed as a conservative nonentity.

He leaves as a liberal champion, widely hailed by legal scholars.

Who changed, the justice or the court?

The answer is a little of both.

In some areas, the court plainly moved beneath him; it is far more conservative than the one he joined.

But few would mistake the Justice Blackmun of the early '70s -- the cautious novice who partly based the Roe v. Wade abortion decision on the rights of doctors -- with the decisive man who now recalls that case as a necessary step toward women's emancipation.

When Harry Blackmun came to Washington, he seemed the classic insider.

A professional lifetime spent at Harvard, an elite law firm, the Mayo Clinic and a federal appeals court imbued him with an idealistic, almost naive faith in institutions and professionals.

He seemed likely to defer to governmental authority and to lose touch with common problems.

But he took his job seriously and did his own work.

The court's sprawling docket exposed him to a broader, more brutal slice of life than he had ever known. The relentless cascade of arguments, briefs, prisoner petitions, death sentences and daily mail -- all of which he read -- painted a less tranquil picture: an America of antagonistic classes, racial conflict and intense personal suffering.

Roe v. Wade earned him steadfast admiration and vicious harassment.

He learned that justices must take sides, that not all social institutions are equally responsible and that judicial deference can amount to abdication.

"There is another world out there," he once wrote, that the court "either chooses to ignore or fears to recognize."

Paradoxically, by donning the robes of high office, Justice Blackmun became less isolated from the everyday world and more aware of the human beings behind the cases.

The insider defended outsiders. Duty made a shy man bold. The conservative follower became a liberal leader. To protect a zone of privacy for others, he sacrificed his own.

Justice Blackmun insisted that "compassion need not be exiled from the province of judging."

Detractors call him undisciplined -- too willing to subordinate law and precedent to his feelings. But it is precisely his discipline, his extraordinary work ethic, that has enabled him to harness his compassion, humility, real-world sensitivity and open-mindedness to the service of the law.

Bill Clinton is said to be looking for a successor who can be easily confirmed.

He would do better to find a candidate with that same rare set of qualities.

Harold Hongju Koh, professor of international law at Yale, was a clerk for Justice Harry Blackmun in 1981 and 1982.

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