Old No. 3 Goes Home

By Margaret Carlson/Washington

Presidents sometimes get better Supreme Court Justices than they deserve. After two mediocre nominees were rejected by the Senate in 1969-70, Richard Nixon finally chose Harry Blackmun, a prim Midwestern Republican the President knew could be confirmed and one he hoped would be a predictable lapdog to Chief Justice Warren Burger. Burger had been Blackmun's grade-school classmate in St. Paul, Minnesota, and had recommended him for the job.

Nixon was right on the first count -- the only criticism of Blackmun at his confirmation hearings was that the Eighth Circuit judge worked too hard -- but wrong on the second. By the time "Old No. 3," as Blackmun called himself, announced his retirement last week, he had become the court's most reliable liberal voice. "This is a guy who came to the court thinking it was the role of the court to defer to government," says Yale law professor Harold Koh. But as Blackmun read the cases, he realized not all government was good. Only when a Democrat was in the White House did he feel it was safe to retire.

Blackmun began as a Justice who blithely upheld a $50 fee for poor people filing for bankruptcy, since all it took was giving up movies and cigarettes for a week. But as in baseball, where he passionately rooted for the hapless Chicago Cubs along with his hometown Minnesota Twins, he came to defend the underdogs in life: blacks, women, gays, aliens, Native Americans. By 1977, in a dissent from the majority's denial of funds for Medicaid abortions, he was aware of " 'another world' out there, the existence of which the Court, I suspect, either chooses to ignore or fears to recognize." Just two months ago, he came to the defense of life's greatest losers when he pronounced that "I shall no longer tinker with the machinery of death." In a society where those who cannot buy high-priced lawyers are disproportionately executed, he wrote that "whether a human being should live or die is so ... rife with all of life's understanding, experiences, prejudices and passions -- that it inevitably defies the rationality and consistency required by the Constitution."

Blackmun may have pleasantly surprised those who worried that he would be a Burger clone, but his move to the left made him perhaps the most vilified Justice in history. Although he would wish to be known for more, Blackmun will largely be remembered for writing the 1973 majority opinion in Roe v. Wade, establishing a woman's right to choose an abortion. He probably set a record for judicial hate mail, 60,000 pieces, calling him everything from the Butcher of Dachau to Pontius Pilate. At a recent speech, he read from one: " 'You are the lowest scum on earth' -- signed by 'an American Patriot.' "

While his judicial philosophy changed over the years, his personality did not. Amid the pomp and majesty of the court, he remained a modest and unassuming man. He lived with his wife of 53 years, Dottie, in a modest apartment in the unfashionable high-rise canyon of Rosslyn, Virginia, and drove an old blue Volkswagen to work most of his days. His only eccentricity has been his absolute devotion to routine. One egg, toast and coffee every morning at 8 a.m. in the court cafeteria with his clerks; a four-block walk around the building at lunchtime, along with a visit to the decrepit exercise room in the court's basement. On Saturday nights he and his wife listened to A Prairie Home Companion's Garrison Keillor, who dubbed his fellow Minnesotan "the shy person's jurist."

At a celebration with 100 friends on his 85th birthday last November, he took Dottie out on the dance floor of the Bavarian Beer Garden near Baltimore and vowed to spend more time with her. On Wednesday he made good on that promise, a much different man than Nixon appointed. And much better.