A Long, Strange Trip: The Nomination and Confirmation of Justice Harry A. Blackmun - 3
of the 20
th
Century. Richard Nixon was the initial author of this political shift, and he prompted the
beginnings of a judicial shift to further advance his political ends.1
The context and conditions of Blackmun’s appointment – similar to those of another “old number
three” (Blackmun, 1988), Anthony Kennedy2 – tell us a much about the frustration of a President’s desire
to “shape” the Court and its interpretations of the Constitution. Harry Blackmun was not a bad choice for
Richard Nixon, but neither was he a particularly informed one. The uninformed nature of the nomination
was not from the want of administration desire to appoint a strong proponent of its constitutional vision
(Dean, 2001), but from its recoil from the twin defeats of Judges Haynsworth and Carswell. Having
eliminated Haynsworth and Carswell’s competitors in making their selections, and lacking adequate time
to fully vet another candidate for an open position on a sitting Court, the Nixon administration grabbed
for a quick and easy confirmation on the basis of a superficial understanding of Blackmun’s appellate
record and strong assurances from “insiders” – here, the newly confirmed Chief Justice, Warren Burger.
The beneficiary of this was a seasoned and intelligent, if low-profile, federal judge from Minnesota. The
effect of this decision was not, ultimately, all that Nixon had hoped it would be. Much like the Kennedy
appointment – as well as the “stealthy” appointment of David Souter, a nominee whose political value
was that he seemed a good fit with the President’s agenda (according to Warren Rudman and John
Sununu) – the context of Blackmun’s appointment and confirmation helped prevent a close assessment of
the Justice he would become. No prognostication, of course, is necessarily accurate, but Blackmun’s
elevation stands as a signal warning to presidents seeking focused judicial influence.
1
This is not to say that Nixon was indifferent to the legal and constitutional dimensions and results of the decisions
tendered by the Court. It is merely to note that his disagreement with much of what it had done had undeniable
political utility to him.
2
Blackmun remained well aware of the circumstances that led to his appointment, occasionally referring to himself
as “old number 3” (See MacKenzie [1975] and Jenkins [1983]). Indeed, upon Anthony Kennedy’s nomination,
Blackmun sent him a note that read, in part: “Tony, I welcome you. You will be confirmed and I also welcome you
to an exclusive membership of a club here in Washington, not the Cosmos, not the Metropolitan, or not some of
these others, but the good old ‘number three club,’ because I was the third choice in 1970, and you are the third
choice in 1988. It keeps you humble to bear it in mind, and as Dottie [Blackmun’s wife] says, it keeps you from
getting to be too judgy” (Blackmun, 1988:48).
Convention