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Arguing the legacy of Justice Blackmun

The legacy of late Supreme Court Justice Harry Blackmun is undergoing serious debate, in the wake of David Garrow's article in Legal Affairs magazine -- and the magazine chairman's note of rebuttal to its content.

Garrow's piece is "fair, insightful and scathing," in the opinion of Volokh Conspirator Jim Lindgren, who recently wrote an op-ed in The Wall Street Journal advocating term limits for Supreme Court Justices. "It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable."

Garrow's biggest critic, however, appears to be Legal Affairs magazine's own chairman, Seth Waxman. The site has posted Waxman's open response to the editors, in which he calls the issue a "jarring anomaly" and says he is left "saddened, that this issue of Legal Affairs departs from its worthwhile mission." Why? Waxman writes,

"One would barely know from this one-sided treatment what a recently published excerpt from Linda Greenhouse's forthcoming study of the Blackmun papers, Becoming Justice Blackmun, reveals: that while Justice Blackmun (like others, one would hope) encouraged his law clerks to write freely and forcefully within the confines of his chambers, he often rejected their recommendations and indeed composed his own analytic memos for each of the several thousand cases in which he participated over a 24-year tenure."

Waxman's letter is followed on the same Web page by a rebuttal to Garrow's piece written by former Blackmun clerk William Alden McDaniel Jr., who lays out some numbers about Garrow's sample that are important if they are accurate. McDaniel writes,

"Justice Blackmun wrote 835 opinions while serving on the court: 313 majority opinions, 238 concurrences, and 284 dissents. Mr. Garrow examines barely 12 of those opinions, less than 1.5 percent. Based on this meager sample, Mr. Garrow uses his purblind analysis to trump up a charge that Justice Blackmun committed a "scandalous abdication of judicial responsibility."

Legal Times' Tony Mauro yesterday quoted Legal Affairs editor and president Lincoln Caplan as saying he was satisfied that the article was fair and accurate, that while "'it would have been acceptable and sensible to enhance the archival work' with views of the clerks, but not required."  Elsewhere in the article, Mauro quotes a number of Blackmun clerks who echo their colleague McDaniel's criticisms. Mauro writes:

"[Randall] Bezanson, like others interviewed, said Garrow's interpretation might have been different if he had sought the perspectives of the clerks whose memos he cited. Asked about that point, Garrow said his goal in the article was 'to put the documentary record out there without people doing a lot of backing and filling.'"

Volokh Conspirator David Bernstein pooh-poohs the value of interviewing clerks in "Obsequious Former Supreme Court Clerks: ... Have you ever seen a story about a Justice where the clerks are portrayed as anything but adoring? Blogfather Eugene Volokh, however, disagrees. Holding forth on the fundamental motivations of loyalty, professor V. writes, " such loyalty doesn't deserve the more or less unalloyed condemnation that the term "obsequiousness" suggests."

Posted by Jennifer Moline on April 19, 2005 at 12:12 PM | Permalink | TrackBack (0)

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