A Long, Strange Trip: The Nomination and Confirmation of Justice Harry A. Blackmun - 29
sentences.” Lay’s brief discussion of these opinions – as, indeed, his discussion of Blackmun’s appellate
opinions in other areas of law – well demonstrates the correctness of his conclusions: as an appellate
judge, Blackmun was a prosecutor’s friend. As with all friendships, however, there were some strains in
the relationship and in these strains one sees clear independence of mind and judicial temper.
Despite the fact that “Blackmun consistently tended to deny defendants’ constitutional claims in
criminal cases” (Pollet, 1975:6), his writing here had the same flavor of rhetorical balance and judicial
distancing that characterized his civil rights opinions. As in the latter, his writing did not linger on the
sometimes purple hue of the facts of the cases, nor does it go out of its way to provide moral comment on
the nature of the accused and the sad state of society that would produce such criminal behavior. A case
in point is Maxwell v. Bishop (1968).
An Arkansas trial court sentenced William L. Maxwell to death by in 1962 for committing a rape.
After several years and rounds of appeals (Epstein and Kobylka, 1992:51), the case ended up before the
Eighth Circuit Court on a habeas corpus petition for the third time. Maxwell’s attorneys raised a number
of claims in their appeal, not the least of which was the argument that his conviction should be reversed
on equal protection grounds because capital punishment was meted out proportionately more frequently
to black than similarly situated white defendants. (Maxwell was black, the woman was white.) A social
scientific study conducted by Dr. Marvin Wolfgang, a sociologist from the University of Pennsylvania,
supported this claim by demonstrating a pronounced sentencing disparity in rape cases in Arkansas over
the period between 1945-65. This difference, according to Wolfgang, was a function of race: “Negroes
convicted of raping white victims were disproportionately sentenced to death.” (398 F.2d at 143) The
district court failed to find racial discrimination in the case. In what is perhaps the most generally
noteworthy of his appellate decisions touching defendants’ rights (see Graham, 1970a; Pollet, 1975),
Blackmun affirmed this decision.
In an opinion that bears a strong resemblance to that issued by Justice Powell in McCleskey v.
Kemp (1987), Judge Blackmun rejected Maxwell’s argument by focusing exclusively on the facts of the
petitioner’s case: “We feel that the statistical argument does nothing to destroy the integrity of Maxwell’s
Convention