From the Library of Congress: Warren Burger Gives Some Advice to Harry Blackmun; William Rehnquist Says Blackmun is a “Meh” Writer

Having shared all of the Reagan Library documents that I saw fit to post, this blog will now markedly change direction . . . and post a series of documents that I recently came across at the Library of Congress. My apologies if such a dramatic switch leads to some whiplash.

For those of you who haven’t been there, the Library of Congress houses an enormous and impressive collection of manuscripts. (Yes, it is possible to have an enormous, but relatively unimpressive, manuscript collection. Give me enough to drink, and I will name names.) One of the Library’s particular strengths is its collection of papers from a large number of United States Supreme Court justices. Among relatively recent justices, Earl Warren, Thurgood Marshall, William Brennan, William O. Douglas, Harry Blackmun, Byron White, and others have given their papers to the Library.

Many, probably most, of these papers have been thoroughly mined by researchers. In some cases, these extractions already have produced articles that fall within an unfortunate genre of law-review submissions that I inexcusably forgot to include in my taxonomy of Suspect Law Review Articles blog post: the “Look What I Found” essay. (I’m not being not entirely fair, here; some authors have built pretty good pieces around archival finds.)

But occasionally, in poring through the files, you can locate something interesting that others have overlooked, or at least haven’t dwelled upon. When working with judges’ papers, more often than not it seems that these late discoveries appear in file folders dedicated not to specific cases (e.g., a judge’s ”Roe v. Wade” case file), which already have been picked clean, but instead to correspondence with law clerks or other, more generic matters. These folders can be pretty extensive and daunting, and haven’t always been perused carefully.

For example, in one such folder I found this memo from William O. Douglas to his OT 1971 clerks. In it, Douglas relates his views regarding the death penalty, advising his clerks that “The question of the death penalty has been a hobby of mine for some years. I have always thought it was extremely unwise as a public policy to enforce it. That of course is a far cry from saying that it is cruel and unusual punishment under the meaning of the Eighth Amendment.”  (In fact, Douglas notes earlier in his memo that “The death penalty has been with us from the very beginning and [it] would require considerable effort to read cruel and unusual punishment in the Eighth Amendment as outlawing it.”) With cases such as Furman v. Georgia looming, Douglas assigned his incoming law clerks a research project that would address “the sociological, penological, psychiatric, and legislative aspects of this whole problem.” Maybe everyone already knows about this memo, or would regard its contents as unsurprising, but I for one found it to be pretty interesting.

In a related story, wow, am I glad that I did not have to undertake that research project.

So, anyway, back to the main point of this post. This past week, when I visited the Library of Congress, I took a peek at a few boxes of folders among the Harry Blackmun papers. Therein, I found: (1) this letter (dated April 20, 1970) from then-National Observer reporter Nina Totenberg to then-nominee Blackmun, thanking him for his recent hospitality during what appears to have been a visit to Stately Blackmun Manor, and apologizing for some errors in a recent Blackmun profile that she had written; and (2) this letter (dated April 27, 1970) from then-Chief Justice Warren Burger to Blackmun, in which Burger gives some pungent advice on how to deal with reporters–especially female reporters. I don’t know if there was a cause-and-effect relationship between the two letters, but Burger’s letter is . . . interesting.  I’ll leave it at that.

But wait, there’s more. I don’t want to have to write a second Blackmun post. I would much rather assess how many years in prison the tri-Lambs would likely have received if they had been prosecuted for their exploits in Revenge of the Nerds, or consider whether it was legit to sentence the Blues Brothers Band to prison along with Jake and Elwood (who definitely deserved it, mission from G_d or no) at the end of The Blues Brothers (on this note, R.I.P., “Duck” Dunn). So I will use this opportunity to share this second set of documents relating to the Blackmun nomination, which I also found fairly interesting.

In them (you’ll have to work past a redacted copy to get to the text, which appears on what presents itself as a retyped duplicate), then-Assistant Attorney General William H. Rehnquist sizes up Blackmun as a possible Supreme Court nominee. Rehnquist describes his future colleague as a “responsible, conservative judge, attuned to the President’s desire that judges ‘interpret, not make the law.’” Rehnquist adds, however, that “I would not say that he is a top-notch writer, and his opinions seem on occasion longer than necessary.”

One wonders if, after Rehnquist joined the Court, Blackmun ever broached the topic of this memo. (Blackmun apparently received a copy, since the caption on the typed version found within his Papers relates that it was retyped in his chambers.)  Probably not, but I’d be interested if anyone ever heard Blackmun and Rehnquist share an inside joke about “top-notch” work.

UPDATE (5/13/2012 @2010 PDT): I originally described Burger’s advice to Blackmun as “shaky,” but I think that’s a bit harsh, too. I must be in a cross mood today. Although Burger certainly uses some regrettable phrases in his letter, a lot of what he writes kinda sorta makes sense. At one point, he’s basically describing the “Greenhouse Effect,” and at another, well, I remember calling up possible interview subjects, back when I interned at “Dateline:NBC,” and leading with, “We just want to understand your side of the story.”  But as a general matter, it’s probably not advisable to go around casually referring to females as, invariably, “the more deadly” sex within any species. Perhaps if Burger had framed his advice a little bit differently, Blackmun would have followed it, instead of . . .

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